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The Vanguard Fire And Generalinsurance Co. Ltd., Madras Vs. M/S. Fraser And Ross And Another
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otherwise, all the provisions of the Act, including S. 33, will apply to the Company.12. The last argument in support of the second contention is that the liabilities have been otherwise provided for. It is said that the Company deposited Rs. 3,94,000/- as security under S. 7 of the Act, which is still available to pay off the liabilities of the Company and therefore when such liabilities do not appear to exceed that amount they have otherwise been provided for. The question thus raised is whether the Company is entitled to take into account the security deposit under S. 7 in order to show that the liabilities have been otherwise provided for. The contention on behalf of the Controller is that when the Act envisages "provision otherwise", this provision has to be over and above the security deposit made by the Company under S. 7. It appears from S. 8 that this deposit is available for the discharge of liabilities arising out of policies of insurance issued by the insurer so long as any such liability remains unsatisfied. But even if a decree has been obtained by a policy-holder on the basis of a liability under policy he is not entitled to attach any part of this deposit until he shows that he has failed to realise the decree in any other way. Further it appears that S. 8 only contemplates policy-holders holding a decree attaching part of the security deposit in case they fail to realise their debt in any other way; it does not contemplate, for example, third parties who have decrees against an insurer, like the Company, (which in its motor insurance business indemnifies the policy-holders against third party risk upto a certain extent) doing so. Such third parties cannot under any circumstances attach any part of the deposit, for S. 8 only permits its attachment in the last resort by a policy-holders of the insurer in respect of a debt due upon a policy. But under S. 2D the decree of a third party in such a case would be the liability of the insurer in respect of his motor insurance business which could not be realised by attachment of any part of deposit under S. 7 Besides, even with respect to decrees of policy-holders the deposit could only be attached when all other ways of realizing the money have failed. In these circumstances it can hardly be said that the fact that this deposit is there is itself a "provision otherwise" to meet the liabilities of the insurer. The policy-holder cannot attach this deposit unless he first exhausts all other means. Even if he has got a decree and even if the insurer admits his claim and wants to pay it, he cannot do so out of the money in deposit under S. 7. As for the third parties who may have decrees against the insurer, they can never attach this deposit in view of the provisions of S. 8. It could not be the intention of the legislature when it was in effect exempting the insurer from all the provisions of the Act on his liabilities being otherwise provided for that such provision should include the security deposit under S. 7, when it has made it so difficult for a policy-holder to get his debt satisfied from that party could not in any way attach the deposit. In these circumstances we are of opinion that when S. 2D provides that the insurer shall be subject to all the provisions of the Act so long as his liabilities in India in respect of the business which is closed remain unsatisfied or not otherwise provided for, the satisfaction or "provision otherwise" does not refer to the deposit under S. 7 and has to be over and above that deposit. It is true that S. 9 provides that the insurer can take back the deposit after satisfying the Court that he has satisfied or otherwise provided for his liabilities. But this "provision otherwise" for the purposes of S.9 must obviously be other than the deposit itself. Further when the insurer wants to take back his deposit on making "provision otherwise" he will have to satisfy the Court that the "provision otherwise" has been fully made and the Court will be in a position to investigate into the matter. This, however, does not mean that if the insurer does not want to take advantage of S. 9 of the Act he can say without submitting to the terms of that section that he has made "provision otherwise", because the deposit which is made under S. 7 is more than all his liabilities of the insurance business that he has closed. It is urged that it is hard, for example, on an insurer who has a large deposit and whose liabilities are small that he should not be able to fall back on his deposit for the purposes of S. 2D. We do not however see any hardship in a case of this kind, for if it is a fact that the deposit of the insurer is large and his liabilities are small he can always take advantage of S. 9 of the Act and submit to an investigation by the Court and take back his deposit after depositing the small sum required to meet his liabilities. We are therefore of opinion that when S. 2D speaks of satisfaction or "provision otherwise" for the liabilities of insurance business which is closed it contemplates such satisfaction or "provision otherwise" over and above the deposit made under S. 7. It is not in dispute in this case that there are some liabilities still pending; it is also not in dispute that they are not satisfied and no provision has been made otherwise for them irrespective of the security deposit. This also appears to have been the position when the order was made in July 1957. In the circumstances the order is good and cannot be called in question by the Company.
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0[ds]5. The contention of Shri Aggarwala is that S. 33 and S. 2D both refer to an insurer which is defined in S. 2 (9) as a person carrying on the business of insurance. He, therefore, contends that as soon as the insurer who was carrying on the business of insurance closes it down completely he no longer remains an insurer and the provisions of the Act do not apply to him. Therefore, according to him, when S. 33 provides for an order of investigation by the Central Government such an order can only be made in respect of a person who is actually carrying on the business of insurance and is thus an insurer and cannot be made against a person who was an insurer but has closed his business. Further, according to Mr. Aggarwala, S. 2D also speaks of an insurer and makes him subject to all the provisions of the Act with respect to any class of insurance business so long as his liabilities in respect of that class remain unsatisfied or not otherwise provided for an therefore S. 2D would only apply to those cases where insurance business is being carried on though some class of insurance business might have been closed. The contention therefore is that reading Ss. 33 and 2D together, no order under S. 33 can be made in case of an insurer who has completely closed his business of insurance.A perusal of a few sections of the Act will illustrate this and immediately show that the word "insurer" has been used in some sections to mean not merely a person actually carrying on business of insurance but also a person who intends to carry on the business of insurance but has not actually started it and also a person who was carrying on the business of insurance but has ceased to do so. For example, S. 3 (2) which deals with an application for registration which naturally has to be made before the business of insurance actually commences, lays down in cl. (b) that the application shall be accompanied by the name, address and the occupation, if any, of the directors where the insurer is a company incorporated under the Indian Companies Act. Here the word "insurer" has been used to indicate the company which is not actually carrying on the business of insurance but is intending to do so and is applying for registration. Further in S. 3 (2) (e) which also deals with an application for registration, it is provided that an insurer having his principal place of business or domicile outside India shall send along with the application a statement verified by an affidavit of the principal officer of the insurer setting forth various requirements. Here again, the word "insurer" has been used for an intending insurer, for the business of insurance would only begin after the registration certificate is granted on the application made under S. 3 (2). Then in S. 9 it is provided that where an insurer has ceased to carry on business, the court may on the application of the insurer order the return to him of the deposit made under S.This shows that though the insurer is not actually carrying on the business of insurance he is still termed an insurer and on his application the deposit may be refunded to him. Again S. 55 which deals with a situation arising out of the winding-up of an insurance company or the insolvency of any other insurer, provides that the value of the assets and liabilities of the insurer shall be ascertained in such manner and upon such basis as the liquidator or the receiver in insolvency thinks fit. The word "insurer" has thus been used in this section for a person or body corporate etc. which is not actually carrying on the business of insurance and has gone into liquidation or has become insolvent.Therefore, though the ordinary meaning to be given to the word "insurer" is as given in the definition clause (S. 2(9)) and refers to a person or body corporate etc. carrying on the business of insurance, the word may also refer in the context of certain provisions of the Act to any intending insurer or quondam insurer. The contention therefore that because the word "insurer" has been used in S. 33 or S. 2D those sections can only apply to insurers who are actually carrying on business cannot necessarily succeed, and we have to see whether in the context of these provisions an insurer will also include a person who was an insurer but has closed his business.Turning now to the second contention, the argument on behalf of the appellant is three-fold. In the first place it is urged that an order can only be made under S. 33 read with S. 2D when the Central Government is satisfied that the liabilities have not been satisfied or otherwise provided for, and that the order should show on the face of it that the Central Government had considered this aspect of the matter and had come to the conclusion that the liabilities remained unsatisfied or not otherwise provided for. Further there is nothing in the present order to show that the Central Government ever considered this aspect of the matter and was satisfied that the liabilities of the appellant-Company remained unsatisfied or not otherwise provided for. There is no doubt that the order is utterly silent on this point and it was only in his letter of October 15, 1957, that the Assistant Controller pointed out S. 2D of the Act and referred to this aspect of the matter.It seems to us only just and proper that when an order is being passed under S. 33 read with S. 2D of the Act it should show on the face of it that the Central Government was prima facie satisfied that the liabilities had remained unsatisfied or not otherwise provided for, for it is only when the liabilities have not been satisfied or otherwise provided for that an order under S. 33 read with S. 2D would be justified in the case of an insurer who has closed his business.We use the word "prima facie" advisedly, for it seems to have been suggested in the High Court that no order could be passed under S. 33 unless it was proved to the hilt that there were liabilities which remained unsatisfied or otherwise unprovided for.It is obvious that such proof would only be available after investigation in the affairs of the insurer.Therefore in order that S. 2D may be workable, all that is required under it is that the Central Govt. should be satisfied after such prima facie inquiry as it considers necessary that there are reasons to believe that the liabilities of the insurer who has closed his business remain unsatisfied or not otherwise provided for and in coming to this prima facie conclusion the Central Government may make enquiry from the insurer with respect to complaints that it may have received against him.But the fact that the order does not on the face of it show that the Central Government considered this aspect of the matter would not make it bad, if in subsequent proceedings taken to challenge it, it is shown that there were materials before the Central Government which would justify its coming to the prima facie conclusion that the liabilities had not been satisfied or otherwise provided for, and therefore an investigation into the affairs was called for.In the present case we find from the materials on the record that there were complaints before the Central Government from those who had claims against the company. Those complaints were apparently referred to the Company and it does not appear that the Company satisfied the Central Government that the complaints were unjustified. It was in this situation that the order for investigation was made in July 1957 after the Company had closed its insurance business. Further on the materials available on the record it does appear that even now there are claims pending to the tune of about one lac of rupees against the Company. So it cannot be said that there were no liabilities of the Company outstanding which were not satisfied or otherwise provided for when the order was made in July 1957. In the circumstances the order cannot be held to be bad because it does not show on the face of it that there were liabilities which had remained unsatisfied or not otherwise provided for.11. In the second place it is urged that there can be no question of satisfying or otherwise providing for liabilities unless the liabilities are ascertained and either admitted or proved. In other words the argument is that it is only those liabilities which are admitted by the insurer or which have been decreed against him and the decrees have become final which can be taken into account in deciding whether the liabilities have remained unsatisfied or not otherwise provided for. It is urged that only those liabilities which are ascertained and either undisputed or proved can be satisfied and that the same applies to their being otherwise provided for.It is true that only those liabilities, which are ascertained and either admitted or proved, can be satisfied; but is does not follow that "provision otherwise" must also be only of liabilities which are ascertained and either admitted or proved.If that were so a dishonest insurer who closes his business could always get out of the provisions of S. 33 read with S. 2D by repudiating all claims made against him and then saying that there are no liabilities which remained unsatisfied or otherwise unprovided for.There can be no doubt therefore if these provisions have to serve the purpose for which they were enacted, (namely, the protection of the interest of the policy-holders and the general public), the words "not otherwise provided for" in S. 2D must refer to liabilities in the nature of claims against the insurer whether the insurer admits them or not and whether a decree has been finally passed in respect of them or not.The intention of making this provision is S.2D is to ensure that probable claims arising out of the insurance business that is closed are provided for before the insurer who has closed his business can say that he is not governed by all the provisions of the Act. There can be no doubt therefore that when "provision otherwise" has to be made it must be with respect to probable claims also that are likely to arise out of the insurance business which has been closed. In the present case even the Company admits that there are probable claims to the tune of about rupees one lac still pending and in the circumstances until they are satisfied or it is shown that they have been provided for otherwise, all the provisions of the Act, including S. 33, will apply to the Company.12. The last argument in support of the second contention is that the liabilities have been otherwise provided for. It is said that the Company deposited Rs. 3,94,000/- as security under S. 7 of the Act, which is still available to pay off the liabilities of the Company and therefore when such liabilities do not appear to exceed that amount they have otherwise been provided for. The question thus raised is whether the Company is entitled to take into account the security deposit under S. 7 in order to show that the liabilities have been otherwise provided for. The contention on behalf of the Controller is that when the Act envisages "provision otherwise", this provision has to be over and above the security deposit made by the Company under S.It appears from S. 8 that this deposit is available for the discharge of liabilities arising out of policies of insurance issued by the insurer so long as any such liability remains unsatisfied. But even if a decree has been obtained by a policy-holder on the basis of a liability under policy he is not entitled to attach any part of this deposit until he shows that he has failed to realise the decree in any other way. Further it appears that S. 8 only contemplates policy-holders holding a decree attaching part of the security deposit in case they fail to realise their debt in any other way; it does not contemplate, for example, third parties who have decrees against an insurer, like the Company, (which in its motor insurance business indemnifies the policy-holders against third party risk upto a certain extent) doing so. Such third parties cannot under any circumstances attach any part of the deposit, for S. 8 only permits its attachment in the last resort by a policy-holders of the insurer in respect of a debt due upon a policy. But under S. 2D the decree of a third party in such a case would be the liability of the insurer in respect of his motor insurance business which could not be realised by attachment of any part of deposit under S. 7 Besides, even with respect to decrees of policy-holders the deposit could only be attached when all other ways of realizing the money have failed. In these circumstances it can hardly be said that the fact that this deposit is there is itself a "provision otherwise" to meet the liabilities of the insurer. The policy-holder cannot attach this deposit unless he first exhausts all other means. Even if he has got a decree and even if the insurer admits his claim and wants to pay it, he cannot do so out of the money in deposit under S. 7. As for the third parties who may have decrees against the insurer, they can never attach this deposit in view of the provisions of S. 8. It could not be the intention of the legislature when it was in effect exempting the insurer from all the provisions of the Act on his liabilities being otherwise provided for that such provision should include the security deposit under S. 7, when it has made it so difficult for a policy-holder to get his debt satisfied from that party could not in any way attach the deposit. In these circumstances we are of opinion that when S. 2D provides that the insurer shall be subject to all the provisions of the Act so long as his liabilities in India in respect of the business which is closed remain unsatisfied or not otherwise provided for, the satisfaction or "provision otherwise" does not refer to the deposit under S. 7 and has to be over and above that deposit. It is true that S. 9 provides that the insurer can take back the deposit after satisfying the Court that he has satisfied or otherwise provided for his liabilities. But this "provision otherwise" for the purposes of S.9 must obviously be other than the deposit itself. Further when the insurer wants to take back his deposit on making "provision otherwise" he will have to satisfy the Court that the "provision otherwise" has been fully made and the Court will be in a position to investigate into the matter. This, however, does not mean that if the insurer does not want to take advantage of S. 9 of the Act he can say without submitting to the terms of that section that he has made "provision otherwise", because the deposit which is made under S. 7 is more than all his liabilities of the insurance business that he has closed. It is urged that it is hard, for example, on an insurer who has a large deposit and whose liabilities are small that he should not be able to fall back on his deposit for the purposes of S. 2D. We do not however see any hardship in a case of this kind, for if it is a fact that the deposit of the insurer is large and his liabilities are small he can always take advantage of S. 9 of the Act and submit to an investigation by the Court and take back his deposit after depositing the small sum required to meet his liabilities. We are therefore of opinion that when S. 2D speaks of satisfaction or "provision otherwise" for the liabilities of insurance business which is closed it contemplates such satisfaction or "provision otherwise" over and above the deposit made under S. 7. It is not in dispute in this case that there are some liabilities still pending; it is also not in dispute that they are not satisfied and no provision has been made otherwise for them irrespective of the security deposit. This also appears to have been the position when the order was made in July 1957. In the circumstances the order is good and cannot be called in question by the Company.
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otherwise, all the provisions of the Act, including S. 33, will apply to the Company.12. The last argument in support of the second contention is that the liabilities have been otherwise provided for. It is said that the Company deposited Rs. 3,94,000/- as security under S. 7 of the Act, which is still available to pay off the liabilities of the Company and therefore when such liabilities do not appear to exceed that amount they have otherwise been provided for. The question thus raised is whether the Company is entitled to take into account the security deposit under S. 7 in order to show that the liabilities have been otherwise provided for. The contention on behalf of the Controller is that when the Act envisages "provision otherwise", this provision has to be over and above the security deposit made by the Company under S. 7. It appears from S. 8 that this deposit is available for the discharge of liabilities arising out of policies of insurance issued by the insurer so long as any such liability remains unsatisfied. But even if a decree has been obtained by a policy-holder on the basis of a liability under policy he is not entitled to attach any part of this deposit until he shows that he has failed to realise the decree in any other way. Further it appears that S. 8 only contemplates policy-holders holding a decree attaching part of the security deposit in case they fail to realise their debt in any other way; it does not contemplate, for example, third parties who have decrees against an insurer, like the Company, (which in its motor insurance business indemnifies the policy-holders against third party risk upto a certain extent) doing so. Such third parties cannot under any circumstances attach any part of the deposit, for S. 8 only permits its attachment in the last resort by a policy-holders of the insurer in respect of a debt due upon a policy. But under S. 2D the decree of a third party in such a case would be the liability of the insurer in respect of his motor insurance business which could not be realised by attachment of any part of deposit under S. 7 Besides, even with respect to decrees of policy-holders the deposit could only be attached when all other ways of realizing the money have failed. In these circumstances it can hardly be said that the fact that this deposit is there is itself a "provision otherwise" to meet the liabilities of the insurer. The policy-holder cannot attach this deposit unless he first exhausts all other means. Even if he has got a decree and even if the insurer admits his claim and wants to pay it, he cannot do so out of the money in deposit under S. 7. As for the third parties who may have decrees against the insurer, they can never attach this deposit in view of the provisions of S. 8. It could not be the intention of the legislature when it was in effect exempting the insurer from all the provisions of the Act on his liabilities being otherwise provided for that such provision should include the security deposit under S. 7, when it has made it so difficult for a policy-holder to get his debt satisfied from that party could not in any way attach the deposit. In these circumstances we are of opinion that when S. 2D provides that the insurer shall be subject to all the provisions of the Act so long as his liabilities in India in respect of the business which is closed remain unsatisfied or not otherwise provided for, the satisfaction or "provision otherwise" does not refer to the deposit under S. 7 and has to be over and above that deposit. It is true that S. 9 provides that the insurer can take back the deposit after satisfying the Court that he has satisfied or otherwise provided for his liabilities. But this "provision otherwise" for the purposes of S.9 must obviously be other than the deposit itself. Further when the insurer wants to take back his deposit on making "provision otherwise" he will have to satisfy the Court that the "provision otherwise" has been fully made and the Court will be in a position to investigate into the matter. This, however, does not mean that if the insurer does not want to take advantage of S. 9 of the Act he can say without submitting to the terms of that section that he has made "provision otherwise", because the deposit which is made under S. 7 is more than all his liabilities of the insurance business that he has closed. It is urged that it is hard, for example, on an insurer who has a large deposit and whose liabilities are small that he should not be able to fall back on his deposit for the purposes of S. 2D. We do not however see any hardship in a case of this kind, for if it is a fact that the deposit of the insurer is large and his liabilities are small he can always take advantage of S. 9 of the Act and submit to an investigation by the Court and take back his deposit after depositing the small sum required to meet his liabilities. We are therefore of opinion that when S. 2D speaks of satisfaction or "provision otherwise" for the liabilities of insurance business which is closed it contemplates such satisfaction or "provision otherwise" over and above the deposit made under S. 7. It is not in dispute in this case that there are some liabilities still pending; it is also not in dispute that they are not satisfied and no provision has been made otherwise for them irrespective of the security deposit. This also appears to have been the position when the order was made in July 1957. In the circumstances the order is good and cannot be called in question by the Company.
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provided for otherwise, all the provisions of the Act, including S. 33, will apply to the Company.12. The last argument in support of the second contention is that the liabilities have been otherwise provided for. It is said that the Company deposited Rs. 3,94,000/- as security under S. 7 of the Act, which is still available to pay off the liabilities of the Company and therefore when such liabilities do not appear to exceed that amount they have otherwise been provided for. The question thus raised is whether the Company is entitled to take into account the security deposit under S. 7 in order to show that the liabilities have been otherwise provided for. The contention on behalf of the Controller is that when the Act envisages "provision otherwise", this provision has to be over and above the security deposit made by the Company under S.It appears from S. 8 that this deposit is available for the discharge of liabilities arising out of policies of insurance issued by the insurer so long as any such liability remains unsatisfied. But even if a decree has been obtained by a policy-holder on the basis of a liability under policy he is not entitled to attach any part of this deposit until he shows that he has failed to realise the decree in any other way. Further it appears that S. 8 only contemplates policy-holders holding a decree attaching part of the security deposit in case they fail to realise their debt in any other way; it does not contemplate, for example, third parties who have decrees against an insurer, like the Company, (which in its motor insurance business indemnifies the policy-holders against third party risk upto a certain extent) doing so. Such third parties cannot under any circumstances attach any part of the deposit, for S. 8 only permits its attachment in the last resort by a policy-holders of the insurer in respect of a debt due upon a policy. But under S. 2D the decree of a third party in such a case would be the liability of the insurer in respect of his motor insurance business which could not be realised by attachment of any part of deposit under S. 7 Besides, even with respect to decrees of policy-holders the deposit could only be attached when all other ways of realizing the money have failed. In these circumstances it can hardly be said that the fact that this deposit is there is itself a "provision otherwise" to meet the liabilities of the insurer. The policy-holder cannot attach this deposit unless he first exhausts all other means. Even if he has got a decree and even if the insurer admits his claim and wants to pay it, he cannot do so out of the money in deposit under S. 7. As for the third parties who may have decrees against the insurer, they can never attach this deposit in view of the provisions of S. 8. It could not be the intention of the legislature when it was in effect exempting the insurer from all the provisions of the Act on his liabilities being otherwise provided for that such provision should include the security deposit under S. 7, when it has made it so difficult for a policy-holder to get his debt satisfied from that party could not in any way attach the deposit. In these circumstances we are of opinion that when S. 2D provides that the insurer shall be subject to all the provisions of the Act so long as his liabilities in India in respect of the business which is closed remain unsatisfied or not otherwise provided for, the satisfaction or "provision otherwise" does not refer to the deposit under S. 7 and has to be over and above that deposit. It is true that S. 9 provides that the insurer can take back the deposit after satisfying the Court that he has satisfied or otherwise provided for his liabilities. But this "provision otherwise" for the purposes of S.9 must obviously be other than the deposit itself. Further when the insurer wants to take back his deposit on making "provision otherwise" he will have to satisfy the Court that the "provision otherwise" has been fully made and the Court will be in a position to investigate into the matter. This, however, does not mean that if the insurer does not want to take advantage of S. 9 of the Act he can say without submitting to the terms of that section that he has made "provision otherwise", because the deposit which is made under S. 7 is more than all his liabilities of the insurance business that he has closed. It is urged that it is hard, for example, on an insurer who has a large deposit and whose liabilities are small that he should not be able to fall back on his deposit for the purposes of S. 2D. We do not however see any hardship in a case of this kind, for if it is a fact that the deposit of the insurer is large and his liabilities are small he can always take advantage of S. 9 of the Act and submit to an investigation by the Court and take back his deposit after depositing the small sum required to meet his liabilities. We are therefore of opinion that when S. 2D speaks of satisfaction or "provision otherwise" for the liabilities of insurance business which is closed it contemplates such satisfaction or "provision otherwise" over and above the deposit made under S. 7. It is not in dispute in this case that there are some liabilities still pending; it is also not in dispute that they are not satisfied and no provision has been made otherwise for them irrespective of the security deposit. This also appears to have been the position when the order was made in July 1957. In the circumstances the order is good and cannot be called in question by the Company.
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M/S.Patheja Bros.Forgings&Stamping &Anr Vs. I.C.I.C.I. Ltd.
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then, notwithstanding anything contained in the Companies Act, 1956 (1 of 1956), or any other law or the memorandum and articles of association of the industrial company or any other instrument having effect under the said Act or other law, no proceedings for the winding up of the industrial company or for execution, distress or the like against any of the properties of the industrial company or for the appointment of a receiver in respect thereof [and no suit for the recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company] shall lie or be proceeded with further, except with the consent of the Board or, as the case may be, the Appellate Authority." 6. The words in the square brackets above were inserted into Section 22 by Act 12 of 1994 and it is these words which are relevant for our purposes. As we read them, they provide that no suit a) for the recovery of moneyor(b) for the enforcementi) of any security against the industrial company, orii) of any guarantee in respect of any loans or advance granted to the industrial company shall lie or be proceeded with except with the consent of the Board or the Appellate Authority under the said Act. For our purposes, therefore, the relevant words are : "no suit ... for the enforcement ... of any guarantee in respect of any loans or advance granted to the industrial company" shall lie without the consent of the Board or the Appellate Authority. The words are crystal clear. There is no ambiguity therein. It must, therefore, be held that no suit for the enforcement of a guarantee in respect of a loan or advance granted to the concerned industrial company will lie or can be proceeded with without the sanction of the Board or the Appellate Authority under the said Act. 7. It is not possible to read the relevant words in Section 22 as meaning that only a suit against the industrial company will not lie without such consent. There is no requirement in Section 22, as analysed above, that, to be covered thereby, a suit for the enforcement of a guarantee in respect of a loan or advance to the industrial company should be against the industrial company. 8. Section 17(3) empowers the Board to direct the preparation of a scheme adopting all or any of all measures specified in Section 18. Section 18(2) states that the scheme may provide, inter alia, for "the continuation by, or against, the sick industrial company or as the case may be, the transferee company or any action or any other legal proceedings pending against the sick industrial company immediately before the date of the order made under sub-section (3) of Section 17". The argument on behalf of the first respondent is that while this provision provides for the continuation of proceedings against the industrial company, there is no provision in the said Act which provides for the continuation of any held up proceeding against the guarantor of a loan or advance to such company and that, therefore, Section 22 should be read as applying only to a suit against the industrial company and not a guarantor. Apart from the fact that, as indicated above, the language of Section 22 is explicit, the scheme would provide for the repayment of the loan or advance and, therefore, would take within its ambit the claim on the guarantee; the question of proceeding with the suit against the guarantor would not arise. On the other hand, if the industrial company cannot be revived by a scheme, the embargo under Section 22 would cease to operate. 9. Section 22A empowers the Board to direct the industrial company not to dispose of except with its consent, any of its assets. Learned counsel for the first respondent pointed out that there was no provision in the said Act which empowered the Board to order the guarantor of a loan or advance to an industrial company not to dispose of his assets. This is true, but Section 22 provides that the suit would lie or be proceeded with after the consent of the Board has been obtained. It would, therefore, be open to the claimant on a guarantee to obtain such consent from the Board. 10. It remains to deal with the judgment of the Division Bench of the Bombay High Court in Madalsa International Ltd. The Division Bench found no ground to so read Section 22 as to hold that a suit against the guarantor also stands suspended. It said, "The guarantor could be absolute third parties or directors of an industrial company. However, in both cases if would be the guarantors, whether third parties or directors, who would be affected personally; and we see no reason to interpret the section in such a manner that apart from the properties of the industrial company, the legislature intended to protect the personal interest of the guarantors as proceedings against guarantor and their personal property would not affect the revival of the industrial company in any manner whatsoever. In the circumstances the words "of any guarantee in respect of any loans, or advance granted to the industrial company" in the context will have to be read as the guarantee given by the industrial company itself and none else." 11. We have analysed the relevant words in Section 22 and found that they are clear and unambiguous and that they provide that no suit for the enforcement of a guarantee in respect of any loan or advance granted to the concerned industrial company will lie or can be proceeded with without the consent of the Board or the Appellate Authority. When the words of a legislation are clear, the court must give effect to them as they stand and cannot demur on the ground that the legislature must have intended otherwise. ï7�3 Š12. As o
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1[ds]It remains to deal with the judgment of the Division Bench of the Bombay High Court in Madalsa International Ltd. The Division Bench found no ground to so read Section 22 as to hold that a suit against the guarantor also stands suspended. It said, "The guarantor could be absolute third parties or directors of an industrial company. However, in both cases if would be the guarantors, whether third parties or directors, who would be affected personally; and we see no reason to interpret the section in such a manner that apart from the properties of the industrial company, the legislature intended to protect the personal interest of the guarantors as proceedings against guarantor and their personal property would not affect the revival of the industrial company in any manner whatsoever. In the circumstances the words "of any guarantee in respect of any loans, or advance granted to the industrial company" in the context will have to be read as the guarantee given by the industrial company itself and nonehave analysed the relevant words in Section 22 and found that they are clear and unambiguous and that they provide that no suit for the enforcement of a guarantee in respect of any loan or advance granted to the concerned industrial company will lie or can be proceeded with without the consent of the Board or the Appellate Authority. When the words of a legislation are clear, the court must give effect to them as they stand and cannot demur on the ground that the legislature must have intendedof today, there is an appeal in respect of the first appellant pending before the Appellate Authority under the said Act. Therefore, the first respondents suit for the enforcement of the guarantees in respect of the loans granted to the first appellant cannot be proceeded with unless consent as required by Section 22 is obtained.
| 1 | 1,804 | 338 |
### 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:
then, notwithstanding anything contained in the Companies Act, 1956 (1 of 1956), or any other law or the memorandum and articles of association of the industrial company or any other instrument having effect under the said Act or other law, no proceedings for the winding up of the industrial company or for execution, distress or the like against any of the properties of the industrial company or for the appointment of a receiver in respect thereof [and no suit for the recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company] shall lie or be proceeded with further, except with the consent of the Board or, as the case may be, the Appellate Authority." 6. The words in the square brackets above were inserted into Section 22 by Act 12 of 1994 and it is these words which are relevant for our purposes. As we read them, they provide that no suit a) for the recovery of moneyor(b) for the enforcementi) of any security against the industrial company, orii) of any guarantee in respect of any loans or advance granted to the industrial company shall lie or be proceeded with except with the consent of the Board or the Appellate Authority under the said Act. For our purposes, therefore, the relevant words are : "no suit ... for the enforcement ... of any guarantee in respect of any loans or advance granted to the industrial company" shall lie without the consent of the Board or the Appellate Authority. The words are crystal clear. There is no ambiguity therein. It must, therefore, be held that no suit for the enforcement of a guarantee in respect of a loan or advance granted to the concerned industrial company will lie or can be proceeded with without the sanction of the Board or the Appellate Authority under the said Act. 7. It is not possible to read the relevant words in Section 22 as meaning that only a suit against the industrial company will not lie without such consent. There is no requirement in Section 22, as analysed above, that, to be covered thereby, a suit for the enforcement of a guarantee in respect of a loan or advance to the industrial company should be against the industrial company. 8. Section 17(3) empowers the Board to direct the preparation of a scheme adopting all or any of all measures specified in Section 18. Section 18(2) states that the scheme may provide, inter alia, for "the continuation by, or against, the sick industrial company or as the case may be, the transferee company or any action or any other legal proceedings pending against the sick industrial company immediately before the date of the order made under sub-section (3) of Section 17". The argument on behalf of the first respondent is that while this provision provides for the continuation of proceedings against the industrial company, there is no provision in the said Act which provides for the continuation of any held up proceeding against the guarantor of a loan or advance to such company and that, therefore, Section 22 should be read as applying only to a suit against the industrial company and not a guarantor. Apart from the fact that, as indicated above, the language of Section 22 is explicit, the scheme would provide for the repayment of the loan or advance and, therefore, would take within its ambit the claim on the guarantee; the question of proceeding with the suit against the guarantor would not arise. On the other hand, if the industrial company cannot be revived by a scheme, the embargo under Section 22 would cease to operate. 9. Section 22A empowers the Board to direct the industrial company not to dispose of except with its consent, any of its assets. Learned counsel for the first respondent pointed out that there was no provision in the said Act which empowered the Board to order the guarantor of a loan or advance to an industrial company not to dispose of his assets. This is true, but Section 22 provides that the suit would lie or be proceeded with after the consent of the Board has been obtained. It would, therefore, be open to the claimant on a guarantee to obtain such consent from the Board. 10. It remains to deal with the judgment of the Division Bench of the Bombay High Court in Madalsa International Ltd. The Division Bench found no ground to so read Section 22 as to hold that a suit against the guarantor also stands suspended. It said, "The guarantor could be absolute third parties or directors of an industrial company. However, in both cases if would be the guarantors, whether third parties or directors, who would be affected personally; and we see no reason to interpret the section in such a manner that apart from the properties of the industrial company, the legislature intended to protect the personal interest of the guarantors as proceedings against guarantor and their personal property would not affect the revival of the industrial company in any manner whatsoever. In the circumstances the words "of any guarantee in respect of any loans, or advance granted to the industrial company" in the context will have to be read as the guarantee given by the industrial company itself and none else." 11. We have analysed the relevant words in Section 22 and found that they are clear and unambiguous and that they provide that no suit for the enforcement of a guarantee in respect of any loan or advance granted to the concerned industrial company will lie or can be proceeded with without the consent of the Board or the Appellate Authority. When the words of a legislation are clear, the court must give effect to them as they stand and cannot demur on the ground that the legislature must have intended otherwise. ï7�3 Š12. As o
### Response:
1
### Explanation:
It remains to deal with the judgment of the Division Bench of the Bombay High Court in Madalsa International Ltd. The Division Bench found no ground to so read Section 22 as to hold that a suit against the guarantor also stands suspended. It said, "The guarantor could be absolute third parties or directors of an industrial company. However, in both cases if would be the guarantors, whether third parties or directors, who would be affected personally; and we see no reason to interpret the section in such a manner that apart from the properties of the industrial company, the legislature intended to protect the personal interest of the guarantors as proceedings against guarantor and their personal property would not affect the revival of the industrial company in any manner whatsoever. In the circumstances the words "of any guarantee in respect of any loans, or advance granted to the industrial company" in the context will have to be read as the guarantee given by the industrial company itself and nonehave analysed the relevant words in Section 22 and found that they are clear and unambiguous and that they provide that no suit for the enforcement of a guarantee in respect of any loan or advance granted to the concerned industrial company will lie or can be proceeded with without the consent of the Board or the Appellate Authority. When the words of a legislation are clear, the court must give effect to them as they stand and cannot demur on the ground that the legislature must have intendedof today, there is an appeal in respect of the first appellant pending before the Appellate Authority under the said Act. Therefore, the first respondents suit for the enforcement of the guarantees in respect of the loans granted to the first appellant cannot be proceeded with unless consent as required by Section 22 is obtained.
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M. V. Narasappa Vs. Commercial Tax Officer, Kolar, and Another
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actually collected during that year. 6. Every dealer not liable to submit a return under rule 12, who has a net turnover of not less than Rs. 10, 000 in any year, shall unless he has elected to be assessed by the method described in rule 20 submit to the assessing authority of the area in which his principal place of business is situated a return in Form VIII showing the actual gross and net turnover for that year and the amount by way of tax or taxes actually collected during the year on or before the 1st day of August of the succeeding year and thereafter for every year on or before the 1st day of August immediately following such year.(2) On the receipt of a return in Form VIII the assessing authority shall, if he is satisfied after such scrutiny of the accounts and such enquiry as he considers necessary that the return is correct and complete, finally assess on the basis of the return the tax or taxes payable under section 3, 5 or 11(2) or under the notification or notifications issued under section 6(1) for the preceding year. (3) If no return is submitted or if the return submitted appears to the assessing authority to be incorrect or incomplete, the assessing authority may, after following the procedure prescribed in rules 14 and 15, finally assess the tax according to the best of his judgment. (4) ............" "34. (1) If for any reason the whole or any part of the turnover of business of a dealer or licensee has escaped assessment to the tax in any year or if the licence fee has escaped levy in any year, the assessing authority or licensing authority, as the case may be, may, at any time within the year or the two years next succeeding that to which the tax or licence fee relates, assess the tax payable on the turnover which has escaped assessment or levy the licence fee, after issuing a notice to the dealer or licensee and after making such enquiry as he considers necessary. (2) If for any reason any tax or licence fee has been assessed at too low a rate in any year, the assessing authority or the licensing authority, as the case may be, may, at any time within the year or the two years next succeeding that to which the tax or licence fee relates, revise the assessment or the licence fee after issuing a notice to the dealer or licensee and after making such enquiry as he considers necessary ...." 7. We have already mentioned that the assessee filed four returns for the year 1955-56, and the Commercial Tax Officer passed an assessment order. The learned counsel for the assessee contends that the Commercial Tax Officer, when he passes an order of assessment on remand, would be assessing that turnover of the assessee which had escaped assessment to tax within the meaning of rule 34. However, the matter is concluded by authority of this Court. We are here concerned with a dealer who has submitted returns and not a dealer who has not submitted a return. As far as the dealer who has submitted a return, it seems to us that no limitation is provided for making an assessment on him, and that till a final assessment order is made it cannot be said that any turnover has escaped assessment within the meaning of rule 34(1).In Ghanshyamdas v. Regional Assistant Commissioner of Sales Tax, Nagpur ([1964] 4 S.C.R. 436; 14 S.T.C. 976), Subba Rao, J., as he then was, speaking for the majority, while dealing with section 11-A of the Central Provinces and Berar Sales Tax Act, 1947, observed : "On the said analogy, the assessment proceedings under the Sales Tax Act must be held to be pending from the time the said proceedings were initiated until they were terminated by a final order of assessment. Before the final order of assessment, it could not be said that the entire turnover or a part thereof of a dealer had escaped assessment, for the assessment was not completed and, if completed, it might be that the entire turnover would be caught in the net." 8. He then dealt with the question : when do the assessment proceedings under the Act in respect of a registered dealer commence and when do they terminate ? He concluded thus : "It is manifest that in the case of a registered dealer the proceedings before the Commissioner start factually when a return is made or when a notice is issued to him either under section 10(3) or under section 11(2) of the Act." He then observed that a case would be pending till a final order of assessment was made by the highest Tribunal or Court under the Act. He finally concluded at page 453 : "For the foregoing reasons we hold that a statutory obligation to make a return within a prescribed time does not proprio vigore initiate the assessment proceedings before the Commissioner; but the proceedings would commence after the return was submitted and would continue till a final order of assessment was made in regard to the said return." 9. Applying the above reasoning to the facts of this case it follows that the proceedings commenced after the returns were submitted by the assessee. No final order of assessment has yet been made in regard to the said returns, and, therefore, it cannot be said that any turnover of the assessee has escaped assessment within rule 34(1) of the Mysore Sales Tax Rules, 1948.We may mention that a similar view has been taken in the later decisions of this Court in State of Punjab v. Tara Chand Lajpat Rai ([1967] 19 S.T.C. 493; A.I.R. 1967 S.C. 1408), State of Punjab v. Murlidhar Mababir Parshad ([1968] 21 S.T.C. 29) and Madhya Pradesh Industries Ltd. v. The State of Maharashtra [Civil Appeal No. 534 of 1966; judgment dated September 28, 1967; [1968] 22 S.T.C. 400].
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0[ds]We heard the learned counsel for the appellant on the constitutional points involved but we find that it is not necessary to deal with them because we agree with the contention of the learned counsel for the respondent that the Commercial Tax Officer would be entitled to assess the assessee in respect of the year 1955-56 regardless of any limitation provided in rule 34 of the Mysore Sales Tax Rules, 1948We overrule this contention because by the time this case was taken up again for hearing on February 1, 1968, the learned counsel for the appellant had had sufficient opportunity to study the point. Moreover, this Court does not decide constitutional points unless it is absolutely essential to do so7. We have already mentioned that the assessee filed four returns for the year 1955-56, and the Commercial Tax Officer passed an assessment order. The learned counsel for the assessee contends that the Commercial Tax Officer, when he passes an order of assessment on remand, would be assessing that turnover of the assessee which had escaped assessment to tax within the meaning of rule 34. However, the matter is concluded by authority of this Court. We are here concerned with a dealer who has submitted returns and not a dealer who has not submitted a return. As far as the dealer who has submitted a return, it seems to us that no limitation is provided for making an assessment on him, and that till a final assessment order is made it cannot be said that any turnover has escaped assessment within the meaning of rule 34(1).In Ghanshyamdas v. Regional Assistant Commissioner of Sales Tax, Nagpur ([1964] 4 S.C.R. 436; 14 S.T.C. 976), Subba Rao, J., as he then was, speaking for the majority, while dealing with section 11-A of the Central Provinces and Berar Sales Tax Act, 1947, observed : "On the said analogy, the assessment proceedings under the Sales Tax Act must be held to be pending from the time the said proceedings were initiated until they were terminated by a final order of assessment. Before the final order of assessment, it could not be said that the entire turnover or a part thereof of a dealer had escaped assessment, for the assessment was not completed and, if completed, it might be that the entire turnover would be caught in the net."8. He then dealt with the question : when do the assessment proceedings under the Act in respect of a registered dealer commence and when do they terminate ? He concluded thus :"It is manifest that in the case of a registered dealer the proceedings before the Commissioner start factually when a return is made or when a notice is issued to him either under section 10(3) or under section 11(2) of the Act."He then observed that a case would be pending till a final order of assessment was made by the highest Tribunal or Court under the Act. He finally concluded at page 453 :"For the foregoing reasons we hold that a statutory obligation to make a return within a prescribed time does not proprio vigore initiate the assessment proceedings before the Commissioner; but the proceedings would commence after the return was submitted and would continue till a final order of assessment was made in regard to the said return."9. Applying the above reasoning to the facts of this case it follows that the proceedings commenced after the returns were submitted by the assessee. No final order of assessment has yet been made in regard to the said returns, and, therefore, it cannot be said that any turnover of the assessee has escaped assessment within rule 34(1) of the Mysore Sales Tax Rules, 1948.
| 0 | 2,553 | 694 |
### 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:
actually collected during that year. 6. Every dealer not liable to submit a return under rule 12, who has a net turnover of not less than Rs. 10, 000 in any year, shall unless he has elected to be assessed by the method described in rule 20 submit to the assessing authority of the area in which his principal place of business is situated a return in Form VIII showing the actual gross and net turnover for that year and the amount by way of tax or taxes actually collected during the year on or before the 1st day of August of the succeeding year and thereafter for every year on or before the 1st day of August immediately following such year.(2) On the receipt of a return in Form VIII the assessing authority shall, if he is satisfied after such scrutiny of the accounts and such enquiry as he considers necessary that the return is correct and complete, finally assess on the basis of the return the tax or taxes payable under section 3, 5 or 11(2) or under the notification or notifications issued under section 6(1) for the preceding year. (3) If no return is submitted or if the return submitted appears to the assessing authority to be incorrect or incomplete, the assessing authority may, after following the procedure prescribed in rules 14 and 15, finally assess the tax according to the best of his judgment. (4) ............" "34. (1) If for any reason the whole or any part of the turnover of business of a dealer or licensee has escaped assessment to the tax in any year or if the licence fee has escaped levy in any year, the assessing authority or licensing authority, as the case may be, may, at any time within the year or the two years next succeeding that to which the tax or licence fee relates, assess the tax payable on the turnover which has escaped assessment or levy the licence fee, after issuing a notice to the dealer or licensee and after making such enquiry as he considers necessary. (2) If for any reason any tax or licence fee has been assessed at too low a rate in any year, the assessing authority or the licensing authority, as the case may be, may, at any time within the year or the two years next succeeding that to which the tax or licence fee relates, revise the assessment or the licence fee after issuing a notice to the dealer or licensee and after making such enquiry as he considers necessary ...." 7. We have already mentioned that the assessee filed four returns for the year 1955-56, and the Commercial Tax Officer passed an assessment order. The learned counsel for the assessee contends that the Commercial Tax Officer, when he passes an order of assessment on remand, would be assessing that turnover of the assessee which had escaped assessment to tax within the meaning of rule 34. However, the matter is concluded by authority of this Court. We are here concerned with a dealer who has submitted returns and not a dealer who has not submitted a return. As far as the dealer who has submitted a return, it seems to us that no limitation is provided for making an assessment on him, and that till a final assessment order is made it cannot be said that any turnover has escaped assessment within the meaning of rule 34(1).In Ghanshyamdas v. Regional Assistant Commissioner of Sales Tax, Nagpur ([1964] 4 S.C.R. 436; 14 S.T.C. 976), Subba Rao, J., as he then was, speaking for the majority, while dealing with section 11-A of the Central Provinces and Berar Sales Tax Act, 1947, observed : "On the said analogy, the assessment proceedings under the Sales Tax Act must be held to be pending from the time the said proceedings were initiated until they were terminated by a final order of assessment. Before the final order of assessment, it could not be said that the entire turnover or a part thereof of a dealer had escaped assessment, for the assessment was not completed and, if completed, it might be that the entire turnover would be caught in the net." 8. He then dealt with the question : when do the assessment proceedings under the Act in respect of a registered dealer commence and when do they terminate ? He concluded thus : "It is manifest that in the case of a registered dealer the proceedings before the Commissioner start factually when a return is made or when a notice is issued to him either under section 10(3) or under section 11(2) of the Act." He then observed that a case would be pending till a final order of assessment was made by the highest Tribunal or Court under the Act. He finally concluded at page 453 : "For the foregoing reasons we hold that a statutory obligation to make a return within a prescribed time does not proprio vigore initiate the assessment proceedings before the Commissioner; but the proceedings would commence after the return was submitted and would continue till a final order of assessment was made in regard to the said return." 9. Applying the above reasoning to the facts of this case it follows that the proceedings commenced after the returns were submitted by the assessee. No final order of assessment has yet been made in regard to the said returns, and, therefore, it cannot be said that any turnover of the assessee has escaped assessment within rule 34(1) of the Mysore Sales Tax Rules, 1948.We may mention that a similar view has been taken in the later decisions of this Court in State of Punjab v. Tara Chand Lajpat Rai ([1967] 19 S.T.C. 493; A.I.R. 1967 S.C. 1408), State of Punjab v. Murlidhar Mababir Parshad ([1968] 21 S.T.C. 29) and Madhya Pradesh Industries Ltd. v. The State of Maharashtra [Civil Appeal No. 534 of 1966; judgment dated September 28, 1967; [1968] 22 S.T.C. 400].
### Response:
0
### Explanation:
We heard the learned counsel for the appellant on the constitutional points involved but we find that it is not necessary to deal with them because we agree with the contention of the learned counsel for the respondent that the Commercial Tax Officer would be entitled to assess the assessee in respect of the year 1955-56 regardless of any limitation provided in rule 34 of the Mysore Sales Tax Rules, 1948We overrule this contention because by the time this case was taken up again for hearing on February 1, 1968, the learned counsel for the appellant had had sufficient opportunity to study the point. Moreover, this Court does not decide constitutional points unless it is absolutely essential to do so7. We have already mentioned that the assessee filed four returns for the year 1955-56, and the Commercial Tax Officer passed an assessment order. The learned counsel for the assessee contends that the Commercial Tax Officer, when he passes an order of assessment on remand, would be assessing that turnover of the assessee which had escaped assessment to tax within the meaning of rule 34. However, the matter is concluded by authority of this Court. We are here concerned with a dealer who has submitted returns and not a dealer who has not submitted a return. As far as the dealer who has submitted a return, it seems to us that no limitation is provided for making an assessment on him, and that till a final assessment order is made it cannot be said that any turnover has escaped assessment within the meaning of rule 34(1).In Ghanshyamdas v. Regional Assistant Commissioner of Sales Tax, Nagpur ([1964] 4 S.C.R. 436; 14 S.T.C. 976), Subba Rao, J., as he then was, speaking for the majority, while dealing with section 11-A of the Central Provinces and Berar Sales Tax Act, 1947, observed : "On the said analogy, the assessment proceedings under the Sales Tax Act must be held to be pending from the time the said proceedings were initiated until they were terminated by a final order of assessment. Before the final order of assessment, it could not be said that the entire turnover or a part thereof of a dealer had escaped assessment, for the assessment was not completed and, if completed, it might be that the entire turnover would be caught in the net."8. He then dealt with the question : when do the assessment proceedings under the Act in respect of a registered dealer commence and when do they terminate ? He concluded thus :"It is manifest that in the case of a registered dealer the proceedings before the Commissioner start factually when a return is made or when a notice is issued to him either under section 10(3) or under section 11(2) of the Act."He then observed that a case would be pending till a final order of assessment was made by the highest Tribunal or Court under the Act. He finally concluded at page 453 :"For the foregoing reasons we hold that a statutory obligation to make a return within a prescribed time does not proprio vigore initiate the assessment proceedings before the Commissioner; but the proceedings would commence after the return was submitted and would continue till a final order of assessment was made in regard to the said return."9. Applying the above reasoning to the facts of this case it follows that the proceedings commenced after the returns were submitted by the assessee. No final order of assessment has yet been made in regard to the said returns, and, therefore, it cannot be said that any turnover of the assessee has escaped assessment within rule 34(1) of the Mysore Sales Tax Rules, 1948.
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M.V. Tongli Yantai Vs. Great Pacific Navication (Holdings) Corporation Limited
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documents under the aforesaid Act and that Lloyds list would be analogous such documents being maintained as public documents containing the data of shipping companies. Of course, our observation would be subject to the decision in the appeal.Counsel on behalf of the Petitioner has produced the Terms and Conditions issued by Lloyds List International for consideration of the data produced by the said agency and the terms and conditions under which it could be used. It shows a disclaimer of the facts contained therein. This document would certainly be considered at the stage of trial, when presumption would be drawn upon the facts contained therein. However we do not feel it necessary to reconsider our judgment based upon the terms and conditions not relied upon though available to the Petitioner at the time of the hearing of the application before the learned single Judge or in appeal before us. We may mention that such a document would not fall within the ambit of Order 47 Rule 1 as a document which was newly discovered upon an important matter or evidence at this stage.11) The Petitioners have produced the Dictionary of International Trade showing the meaning of Lloyds list and Lloyds register. Lloyds list is shown to be the leading source of worldwide maritime news and information including coverage of world shipping insurance. Lloyds register is shown to be a register of vessels containing valuable information relating to their description and insurance. Lloyds list, therefore, appears to be wider than the Lloyds register and would contain matters relating to vessels and their description and insurance. From the Dictionary meanings of the two documents themselves the closeness to the relationship between the two is shown. The admissibility and acceptance of the documents alone would differ. Even if the statutory presumption was not to be drawn, the Lloyds list would be accepted in evidence as being the leading source of maritime information. The information in this case would be considered in the evidence in that light. We have made our prima facie observations upon the documentary evidence pending any further oral evidence in proof of the document.12) Finance of Far East Horizon Ltd. (FEHL):It was an admitted position that one Far East Horizon Ltd., (FEHL) was a financer who financed the Defendant ship to the extent of 60% of its purchase price. Counsel on behalf of the Petitioner would have it emphasised that FEHL financed the ship through Halcyon. We do not see the difference that it would make.13) The judgment in the case of Permina 3001 (1979 (1) LLR 327) : Counsel on behalf of the Petitioner contended that the paragraphs emphasised by the Petitioner during the arguments of the appeal were not considered or reproduced in our judgment. The judgment related to the beneficial ownership. We have considered that aspect. We need not articulate it as the Petitioner would desire.14) All the shares in the ship :The beneficial ownership was shown to be contained in the individual company which owned all the shares in the ship. That aspect has been set out in the plaint as also in the English statute and the English judgments. It is contended that thereafter the Plaintiff put forward a contrary case of the shares, but not all the shares, in the ship which were required for beneficial ownership. This aspect has been considered in our judgment upon minutely dissecting the case of Ohm Mariana referred to whilst taking an overall view of all the cases cited before us in paragraph 83. Whether or not all the shares of the ship or the person who had the right to sell, dispose of, or alienate the ship could be termed as the beneficial owner would be the question of law to be decided in an appeal from our judgment, we having decided in favour of the latter.15) Judgment in the case of Polestar Maritime Vs. Qi Li Men & Ors .:The judgment sets out the usual position which prevails with regard to limited companies. It lays down the correct state of law under the usual circumstances. The corporate veil is required to be lifted to see the position that actually prevails under unusual circumstances. Consequently, what the Petitioner considers our failure would be tested in appeal.16) The Merchant Shipping Act, 1958 :We have considered the provision of the Act as was shown to us by Counsel on behalf of the Plaintiff. Counsel on behalf of the Defendant had argued about his own interpretation of that law. Reiteration of that fact would be permissible only in appeal.17) Judgment in the case of Geetanjali Wollen Pvt. Ltd. Vs. m.v. Xpress Annapurna & Ors. (2005 (6) BCR 31):We are informed that our observation that the appeal from order in that case was dismissed is erroneously recorded in paragraph 93 of our judgment though it was stayed in that case. We shall make the necessary correction in that behalf.18) Observation of the learned single Judge with regard to the reason for not lifting the corporate veil:We have observed that the learned single Judge has observed that two of the companies whose veil was sought to be lifted were not sued. Paragraph 136 of the judgment of the learned single Judge shows that the question of law relating to lifting the corporate veil would arise in "proceedings between" the Plaintiff and those companies. That could only be if the companies were sued. We read the judgment accordingly.19) Points pressed which were not taken in the judgment :Counsel on behalf of the Petitioner has drawn our attention to the judgment in the case of Mohd. Akram Ansari Vs. Chief Election Officer & Ors (2008) 2 SCC 95 in which it was held that in such a case a review would lie. Upon this judgment Counsel of the Petitioner has raised before us the aforesaid points which have been considered.We may mention that other than the aforesaid, no other point has been pressed before us in arguments and we refrain from considering any other.
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1[ds]We have observed that the learned single Judge has observed that two of the companies whose veil was sought to be lifted were not sued. Paragraph 136 of the judgment of the learned single Judge shows that the question of law relating to lifting the corporate veil would arise in "proceedings between" the Plaintiff and those companies. That could only be if the companies were sued. We read the judgment accordingly.19) Points pressed which were not taken in the judgment :Counsel on behalf of the Petitioner has drawn our attention to the judgment in the case of Mohd. Akram Ansari Vs. Chief Election OfficerOrs (2008) 2 SCC 95 in which it was held that in such a case a review would lie. Upon this judgment Counsel of the Petitioner has raised before us the aforesaid points which have been considered.We may mention that other than the aforesaid, no other point has been pressed before us in arguments and we refrain from considering any other.
| 1 | 3,548 | 181 |
### 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:
documents under the aforesaid Act and that Lloyds list would be analogous such documents being maintained as public documents containing the data of shipping companies. Of course, our observation would be subject to the decision in the appeal.Counsel on behalf of the Petitioner has produced the Terms and Conditions issued by Lloyds List International for consideration of the data produced by the said agency and the terms and conditions under which it could be used. It shows a disclaimer of the facts contained therein. This document would certainly be considered at the stage of trial, when presumption would be drawn upon the facts contained therein. However we do not feel it necessary to reconsider our judgment based upon the terms and conditions not relied upon though available to the Petitioner at the time of the hearing of the application before the learned single Judge or in appeal before us. We may mention that such a document would not fall within the ambit of Order 47 Rule 1 as a document which was newly discovered upon an important matter or evidence at this stage.11) The Petitioners have produced the Dictionary of International Trade showing the meaning of Lloyds list and Lloyds register. Lloyds list is shown to be the leading source of worldwide maritime news and information including coverage of world shipping insurance. Lloyds register is shown to be a register of vessels containing valuable information relating to their description and insurance. Lloyds list, therefore, appears to be wider than the Lloyds register and would contain matters relating to vessels and their description and insurance. From the Dictionary meanings of the two documents themselves the closeness to the relationship between the two is shown. The admissibility and acceptance of the documents alone would differ. Even if the statutory presumption was not to be drawn, the Lloyds list would be accepted in evidence as being the leading source of maritime information. The information in this case would be considered in the evidence in that light. We have made our prima facie observations upon the documentary evidence pending any further oral evidence in proof of the document.12) Finance of Far East Horizon Ltd. (FEHL):It was an admitted position that one Far East Horizon Ltd., (FEHL) was a financer who financed the Defendant ship to the extent of 60% of its purchase price. Counsel on behalf of the Petitioner would have it emphasised that FEHL financed the ship through Halcyon. We do not see the difference that it would make.13) The judgment in the case of Permina 3001 (1979 (1) LLR 327) : Counsel on behalf of the Petitioner contended that the paragraphs emphasised by the Petitioner during the arguments of the appeal were not considered or reproduced in our judgment. The judgment related to the beneficial ownership. We have considered that aspect. We need not articulate it as the Petitioner would desire.14) All the shares in the ship :The beneficial ownership was shown to be contained in the individual company which owned all the shares in the ship. That aspect has been set out in the plaint as also in the English statute and the English judgments. It is contended that thereafter the Plaintiff put forward a contrary case of the shares, but not all the shares, in the ship which were required for beneficial ownership. This aspect has been considered in our judgment upon minutely dissecting the case of Ohm Mariana referred to whilst taking an overall view of all the cases cited before us in paragraph 83. Whether or not all the shares of the ship or the person who had the right to sell, dispose of, or alienate the ship could be termed as the beneficial owner would be the question of law to be decided in an appeal from our judgment, we having decided in favour of the latter.15) Judgment in the case of Polestar Maritime Vs. Qi Li Men & Ors .:The judgment sets out the usual position which prevails with regard to limited companies. It lays down the correct state of law under the usual circumstances. The corporate veil is required to be lifted to see the position that actually prevails under unusual circumstances. Consequently, what the Petitioner considers our failure would be tested in appeal.16) The Merchant Shipping Act, 1958 :We have considered the provision of the Act as was shown to us by Counsel on behalf of the Plaintiff. Counsel on behalf of the Defendant had argued about his own interpretation of that law. Reiteration of that fact would be permissible only in appeal.17) Judgment in the case of Geetanjali Wollen Pvt. Ltd. Vs. m.v. Xpress Annapurna & Ors. (2005 (6) BCR 31):We are informed that our observation that the appeal from order in that case was dismissed is erroneously recorded in paragraph 93 of our judgment though it was stayed in that case. We shall make the necessary correction in that behalf.18) Observation of the learned single Judge with regard to the reason for not lifting the corporate veil:We have observed that the learned single Judge has observed that two of the companies whose veil was sought to be lifted were not sued. Paragraph 136 of the judgment of the learned single Judge shows that the question of law relating to lifting the corporate veil would arise in "proceedings between" the Plaintiff and those companies. That could only be if the companies were sued. We read the judgment accordingly.19) Points pressed which were not taken in the judgment :Counsel on behalf of the Petitioner has drawn our attention to the judgment in the case of Mohd. Akram Ansari Vs. Chief Election Officer & Ors (2008) 2 SCC 95 in which it was held that in such a case a review would lie. Upon this judgment Counsel of the Petitioner has raised before us the aforesaid points which have been considered.We may mention that other than the aforesaid, no other point has been pressed before us in arguments and we refrain from considering any other.
### Response:
1
### Explanation:
We have observed that the learned single Judge has observed that two of the companies whose veil was sought to be lifted were not sued. Paragraph 136 of the judgment of the learned single Judge shows that the question of law relating to lifting the corporate veil would arise in "proceedings between" the Plaintiff and those companies. That could only be if the companies were sued. We read the judgment accordingly.19) Points pressed which were not taken in the judgment :Counsel on behalf of the Petitioner has drawn our attention to the judgment in the case of Mohd. Akram Ansari Vs. Chief Election OfficerOrs (2008) 2 SCC 95 in which it was held that in such a case a review would lie. Upon this judgment Counsel of the Petitioner has raised before us the aforesaid points which have been considered.We may mention that other than the aforesaid, no other point has been pressed before us in arguments and we refrain from considering any other.
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CHENNAI PORT TRUST Vs. THE CHENNAI PORT TRUST INDUSTRIAL EMPLOYEES CANTEEN WORKERS WELFARE ASSOCIATION AND ORS
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and all the benefits to the canteen employees.(ix) The prices of the food stuff are very cheap and the food is carried in trickles to the workers in the Marshalling Yard, ONGC Pipeline, Oil Dock, Diesel Loco and such other places where a canteen cannot be established and specifically intended only for the workers.(x) The Executive Engineer (Mechanical) of the Port Trust has been nominated as the President of the canteen and the entire canteen affairs are handled and controlled by the Chief Mechanical Engineer of the Port Trust.(xi) The financial matters are controlled by the Financial Adviser and Chief Accounts Officer of the Port Trust.(xii) The President of the fourth respondent controls all policy matters concerning the canteen.(xiii) It is a matter of common knowledge that at least as far as Chennai Port Trust is concerned, it is located in a place that the nearest restaurant or canteen would be at least two to three kilometres away from the entrance of the Port Trust. Therefore, the canteen is a must not only for employees, but also for the entire staff at various levels and also visitors having official and commercial dealings with the Port Trust. The Port Trust itself is a very large and sprawling area from one end to the other. Therefore, the canteen is an indispensable necessity to the Port Trust.The learned single Judge thereafter observed that none of the aforesaid positive claims of the writ petitioner are denied by the respondents. It is only because there was no dispute on facts that the learned single Judge proceeded to decide the matter, though the workmen had directly filed the writ petition without approaching the Tribunal.15. If we see the Indian Petrochemicals case, the similarity of the factual issues is quite startling. In that case –(a) The canteen has been there since the inception of the appellants factory.(b) The workmen have been employed for long years and despite a change of contractors, the workers have continued to be employed in the canteen.(c) The premises, furniture, fixture, fuel, electricity, utensils etc. have been provided for by the appellant.d) The wages of the canteen workers have to be reimbursed by the appellant.(e) The supervision and control on the canteen is exercised by the appellant through its authorised officer, as can be seen from the various clauses of the contract between the appellant and the contractor.(f) The contractor is nothing but an agent or a manager of the appellant, who works completely under the supervision, control and directions of the appellant.(g) The workmen have the protection of continuous employment in the establishment.On the basis of the above facts, the Supreme Court arrived at the opinion that the workmen were the workmen of the management and by the same process of reasoning, the learned single Judge also came to the conclusion that the canteen workmen were the workmen of the Port Trust. We see no error in this reasoning.”15. We find no fault in the aforementioned findings recorded by the Division Bench as, in our view, these findings were recorded on the basis of undisputed facts and documents on record of the case. That apart, these findings were recorded keeping in view the facts involved and law laid down by this Court in the case of Indian Petrochemicals (supra)16. Mere perusal of the decision rendered in the case of Indian Petrochemicals (supra) would go to show that in that case also, somewhat similar question, which is the subject matter of this appeal, had arisen at the instance of the employees working in canteen. This Court (Three Judge Bench) elaborately examined the question and took note of the relevant undisputed facts, which had bearing over the question, granted the reliefs to the employees concerned.17. In our considered opinion, the approach and the reasoning of the two Courts below (Writ Court and Division Bench) while deciding the writ petition and the appeal arising out of the writ petition keeping in view the law laid down by this Court in the case of Indian Petrochemicals (supra) is just, proper and legal.18. In other words, if on the undisputed facts, this Court has granted benefit to the canteen workers in the case of Indian Petrochemicals (supra) then there is no reason that on the same set of undisputed facts arising in this case, the Court should not grant the benefit to the employees/workers in this case. It is more so when no distinguishable facts are pointed out in this case qua Indian Petrochemicals’s case(supra).19. We are, therefore, in agreement with the approach, reasoning and the conclusion arrived at by the two Courts below.20. We are, however, not impressed by the submission of the learned counsel for the appellant (Chennai Port Trust) when he contended that the writ Court should not have entertained the writ petition and instead the respondent (Writ Petitioner-Association) should have been granted liberty to approach the Industrial Tribunal/Labour Court for adjudication of the dispute raised by them in the writ petition.21. In the first place, writ Court having entertained the writ petition and granted relief on merits, this objection has lost its significance now; Second, the appellate Court also having gone into the merits of the case and affirmed the order of the writ Court on merits, it is too late to entertain such submission, which is technical in nature; and third, the findings on merits have been recorded by the two Courts on the basis of undisputed facts/documents requiring no trial on facts.22. It is for these reasons, we are of the view that the submission of learned counsel for the appellant has no merit.23. Though learned counsel for the appellant argued some more issues but they did not impress us so as to reverse the findings of the two courts below and in any case, in the light of the findings recorded by the two Courts below, which are based on the law laid down by this Court in the case of Indian Petrochemicals (supra), we need not entertain his submissions.
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0[ds]11. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in the appeal.12. In our considered view, the Writ Court (Single Judge) and the Division Bench were right in their reasoning and the conclusion.13. The Division Bench, in our opinion, rightly relied upon the decision of this Court in Indian Petrochemicals Corporation Ltd. and Anr. vs Shramik Sena & Ors., (1999) 6 SCC 439 and compared the facts of the above case with that of the case at hand and found great similarities in both for granting relief to the members of the respondent (Association).We find no fault in the aforementioned findings recorded by the Division Bench as, in our view, these findings were recorded on the basis of undisputed facts and documents on record of the case. That apart, these findings were recorded keeping in view the facts involved and law laid down by this Court in the case of Indian Petrochemicals (supra)16. Mere perusal of the decision rendered in the case of Indian Petrochemicals (supra) would go to show that in that case also, somewhat similar question, which is the subject matter of this appeal, had arisen at the instance of the employees working in canteen. This Court (Three Judge Bench) elaborately examined the question and took note of the relevant undisputed facts, which had bearing over the question, granted the reliefs to the employees concerned.17. In our considered opinion, the approach and the reasoning of the two Courts below (Writ Court and Division Bench) while deciding the writ petition and the appeal arising out of the writ petition keeping in view the law laid down by this Court in the case of Indian Petrochemicals (supra) is just, proper and legal.18. In other words, if on the undisputed facts, this Court has granted benefit to the canteen workers in the case of Indian Petrochemicals (supra) then there is no reason that on the same set of undisputed facts arising in this case, the Court should not grant the benefit to the employees/workers in this case. It is more so when no distinguishable facts are pointed out in this case qua Indiancase(supra).19. We are, therefore, in agreement with the approach, reasoning and the conclusion arrived at by the two Courts below.20. We are, however, not impressed by the submission of the learned counsel for the appellant (Chennai Port Trust) when he contended that the writ Court should not have entertained the writ petition and instead the respondent (Writshould have been granted liberty to approach the Industrial Tribunal/Labour Court for adjudication of the dispute raised by them in the writ petition.21. In the first place, writ Court having entertained the writ petition and granted relief on merits, this objection has lost its significance now; Second, the appellate Court also having gone into the merits of the case and affirmed the order of the writ Court on merits, it is too late to entertain such submission, which is technical in nature; and third, the findings on merits have been recorded by the two Courts on the basis of undisputed facts/documents requiring no trial on facts.22. It is for these reasons, we are of the view that the submission of learned counsel for the appellant has no merit.23. Though learned counsel for the appellant argued some more issues but they did not impress us so as to reverse the findings of the two courts below and in any case, in the light of the findings recorded by the two Courts below, which are based on the law laid down by this Court in the case of Indian Petrochemicals (supra), we need not entertain his submissions.
| 0 | 2,480 | 699 |
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and all the benefits to the canteen employees.(ix) The prices of the food stuff are very cheap and the food is carried in trickles to the workers in the Marshalling Yard, ONGC Pipeline, Oil Dock, Diesel Loco and such other places where a canteen cannot be established and specifically intended only for the workers.(x) The Executive Engineer (Mechanical) of the Port Trust has been nominated as the President of the canteen and the entire canteen affairs are handled and controlled by the Chief Mechanical Engineer of the Port Trust.(xi) The financial matters are controlled by the Financial Adviser and Chief Accounts Officer of the Port Trust.(xii) The President of the fourth respondent controls all policy matters concerning the canteen.(xiii) It is a matter of common knowledge that at least as far as Chennai Port Trust is concerned, it is located in a place that the nearest restaurant or canteen would be at least two to three kilometres away from the entrance of the Port Trust. Therefore, the canteen is a must not only for employees, but also for the entire staff at various levels and also visitors having official and commercial dealings with the Port Trust. The Port Trust itself is a very large and sprawling area from one end to the other. Therefore, the canteen is an indispensable necessity to the Port Trust.The learned single Judge thereafter observed that none of the aforesaid positive claims of the writ petitioner are denied by the respondents. It is only because there was no dispute on facts that the learned single Judge proceeded to decide the matter, though the workmen had directly filed the writ petition without approaching the Tribunal.15. If we see the Indian Petrochemicals case, the similarity of the factual issues is quite startling. In that case –(a) The canteen has been there since the inception of the appellants factory.(b) The workmen have been employed for long years and despite a change of contractors, the workers have continued to be employed in the canteen.(c) The premises, furniture, fixture, fuel, electricity, utensils etc. have been provided for by the appellant.d) The wages of the canteen workers have to be reimbursed by the appellant.(e) The supervision and control on the canteen is exercised by the appellant through its authorised officer, as can be seen from the various clauses of the contract between the appellant and the contractor.(f) The contractor is nothing but an agent or a manager of the appellant, who works completely under the supervision, control and directions of the appellant.(g) The workmen have the protection of continuous employment in the establishment.On the basis of the above facts, the Supreme Court arrived at the opinion that the workmen were the workmen of the management and by the same process of reasoning, the learned single Judge also came to the conclusion that the canteen workmen were the workmen of the Port Trust. We see no error in this reasoning.”15. We find no fault in the aforementioned findings recorded by the Division Bench as, in our view, these findings were recorded on the basis of undisputed facts and documents on record of the case. That apart, these findings were recorded keeping in view the facts involved and law laid down by this Court in the case of Indian Petrochemicals (supra)16. Mere perusal of the decision rendered in the case of Indian Petrochemicals (supra) would go to show that in that case also, somewhat similar question, which is the subject matter of this appeal, had arisen at the instance of the employees working in canteen. This Court (Three Judge Bench) elaborately examined the question and took note of the relevant undisputed facts, which had bearing over the question, granted the reliefs to the employees concerned.17. In our considered opinion, the approach and the reasoning of the two Courts below (Writ Court and Division Bench) while deciding the writ petition and the appeal arising out of the writ petition keeping in view the law laid down by this Court in the case of Indian Petrochemicals (supra) is just, proper and legal.18. In other words, if on the undisputed facts, this Court has granted benefit to the canteen workers in the case of Indian Petrochemicals (supra) then there is no reason that on the same set of undisputed facts arising in this case, the Court should not grant the benefit to the employees/workers in this case. It is more so when no distinguishable facts are pointed out in this case qua Indian Petrochemicals’s case(supra).19. We are, therefore, in agreement with the approach, reasoning and the conclusion arrived at by the two Courts below.20. We are, however, not impressed by the submission of the learned counsel for the appellant (Chennai Port Trust) when he contended that the writ Court should not have entertained the writ petition and instead the respondent (Writ Petitioner-Association) should have been granted liberty to approach the Industrial Tribunal/Labour Court for adjudication of the dispute raised by them in the writ petition.21. In the first place, writ Court having entertained the writ petition and granted relief on merits, this objection has lost its significance now; Second, the appellate Court also having gone into the merits of the case and affirmed the order of the writ Court on merits, it is too late to entertain such submission, which is technical in nature; and third, the findings on merits have been recorded by the two Courts on the basis of undisputed facts/documents requiring no trial on facts.22. It is for these reasons, we are of the view that the submission of learned counsel for the appellant has no merit.23. Though learned counsel for the appellant argued some more issues but they did not impress us so as to reverse the findings of the two courts below and in any case, in the light of the findings recorded by the two Courts below, which are based on the law laid down by this Court in the case of Indian Petrochemicals (supra), we need not entertain his submissions.
### Response:
0
### Explanation:
11. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in the appeal.12. In our considered view, the Writ Court (Single Judge) and the Division Bench were right in their reasoning and the conclusion.13. The Division Bench, in our opinion, rightly relied upon the decision of this Court in Indian Petrochemicals Corporation Ltd. and Anr. vs Shramik Sena & Ors., (1999) 6 SCC 439 and compared the facts of the above case with that of the case at hand and found great similarities in both for granting relief to the members of the respondent (Association).We find no fault in the aforementioned findings recorded by the Division Bench as, in our view, these findings were recorded on the basis of undisputed facts and documents on record of the case. That apart, these findings were recorded keeping in view the facts involved and law laid down by this Court in the case of Indian Petrochemicals (supra)16. Mere perusal of the decision rendered in the case of Indian Petrochemicals (supra) would go to show that in that case also, somewhat similar question, which is the subject matter of this appeal, had arisen at the instance of the employees working in canteen. This Court (Three Judge Bench) elaborately examined the question and took note of the relevant undisputed facts, which had bearing over the question, granted the reliefs to the employees concerned.17. In our considered opinion, the approach and the reasoning of the two Courts below (Writ Court and Division Bench) while deciding the writ petition and the appeal arising out of the writ petition keeping in view the law laid down by this Court in the case of Indian Petrochemicals (supra) is just, proper and legal.18. In other words, if on the undisputed facts, this Court has granted benefit to the canteen workers in the case of Indian Petrochemicals (supra) then there is no reason that on the same set of undisputed facts arising in this case, the Court should not grant the benefit to the employees/workers in this case. It is more so when no distinguishable facts are pointed out in this case qua Indiancase(supra).19. We are, therefore, in agreement with the approach, reasoning and the conclusion arrived at by the two Courts below.20. We are, however, not impressed by the submission of the learned counsel for the appellant (Chennai Port Trust) when he contended that the writ Court should not have entertained the writ petition and instead the respondent (Writshould have been granted liberty to approach the Industrial Tribunal/Labour Court for adjudication of the dispute raised by them in the writ petition.21. In the first place, writ Court having entertained the writ petition and granted relief on merits, this objection has lost its significance now; Second, the appellate Court also having gone into the merits of the case and affirmed the order of the writ Court on merits, it is too late to entertain such submission, which is technical in nature; and third, the findings on merits have been recorded by the two Courts on the basis of undisputed facts/documents requiring no trial on facts.22. It is for these reasons, we are of the view that the submission of learned counsel for the appellant has no merit.23. Though learned counsel for the appellant argued some more issues but they did not impress us so as to reverse the findings of the two courts below and in any case, in the light of the findings recorded by the two Courts below, which are based on the law laid down by this Court in the case of Indian Petrochemicals (supra), we need not entertain his submissions.
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Shama Rahul Moholkar @ Shama Vasant Padale & Another Vs. Rahul Deorao Moholkar & Another
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sources of income. Respondent has done his Bachelor in Engineering from V.J.T.I, Matunga, Mumbai and Masters in Management Studies from NMIS, Mumbai. He is also Director of Xlrite Consulting Private Ltd and having his office at Bhagatsing Road, Mumbai. He owns Tata Indigo Car. Just before the proceeding in the Family Court were filed, he has sold out 2 BHK flat at Mulud (W) and was in the process of purchase of flat at Lokhandwala Complex. He stays in a bungalow, belonging to his father at NIBM Road, Pune. He has various bank accounts, numerous credit cards. His profile seen on screen shots produced on record of the Family Court indicates that his name is the owner of M/s Canary Recruitment and Training Consultancy. Respondent has not disputed the fact that he is running this Xlrite Consultancy Pvt. Ltd.14. However, respondent has produced on record the income tax returns of the last three years showing his income to be around Rs.1,80,000/- per annum. As rightly pointed out by learned counsel for the petitioner, all these three returns are filed on the same date after the divorce petition was instituted in the Court. Hence much reliance cannot be placed on these income tax returns. Otherwise also, law is well settled that income tax return do not reflect true income of the parties and the Court has to assess the said income on the basis of documentary evidence.15. Here in the case, one can take into consideration the profile of the respondent husband filed on Jeevan Sathi.com stating his annual income around Rs.25 lacs and above and further states that he was having his own income from HR Recruitment and Consultancy Training Software Services for clients across India.16. It cannot be accepted that immediately after filing of the divorce petition his income is reduced. Conversely one can safely conclude that this attempt of showing reduced or no income, after filing of matrimonial proceeding appears to be a routine phenomena of which notice is taken by the Honble Supreme Court in Manish Jain -vs- Akanksha Jain, CDJ 2017 SC 352, by observing in paragraph No. 39 as follows:-It has now become a matter of routine that as and when an application for maintenance is filed, the non applicant becomes poor displaying that he is not residing with the family members if they have a good business and movable and immovable properties in order to avoid payment of maintenance. Courts cannot under these circumstances close their eyes when tricks are being played in a clever manner17. Thus, the fact remains that respondent herein is well qualified and having regard to life style of both the parties, it can hardly be accepted that he is unable to contribute an amount of Rs.25,000/- per month towards interim maintenance of his daughter Siddhi.18. In addition to that, as rightly held by the Family Court, respondent has to pay educational expenses of daughter Siddhi. Therefore, as regards the writ petition of respondent, this Court does not find any merit therein to entertain the same and hence the same deserves to be dismissed.19. As regards the writ petition of petitioner wife, as stated above she is also a very well qualified person. Her qualifications are MMS, HR, DBM, DID. She is convent educated. She had worked with the company for over 7 years. At present also in her maiden name, Shama Vasant Padale, she is Director of ERP Corporation Pvt. Ltd. Her name is accordingly registered with Ministry of Corporate Affairs. The print out thereof is also produced on record. Copy of her consent is also produced on record.20. When these documents were produced in the Court by respondent, she has filed an affidavit before the Family Court stating that she is only a nominal or formal Director and on account busy schedule of the child she is not in active participation in the work. However, the fact remains that she has not produced on record her income tax returns for the last three years to prove that she is not having any income therefrom. However, the respondent has produced on record documents to show that earlier petitioner was having 1/3 share in the said company as a Director and now one of the Directors having been resigned, she is practically having 50% share. Even if it is accepted that the offices of the said company are at Bangalore and at Mumbai and presently she is placed in Pune, being a Director, it is not necessary that she should participate actively in the day-to-day affairs of the company. She can exercise supervisory control over the affairs of the company even from Pune and get her share in the dividend and profits of the company. Therefore, her case that she is having no source of income at present and her father is maintaining her also cannot be accepted.21. Assuming that there is some difference in the earning and income of the petitioner and respondent, provisions of interim maintenance are not made for equalising their income but to ensure that either spouse does not suffer because of paucity of the income in the course of the proceeding. Where both the husband and wife are earning and having good income, merely because there is some difference in the respective income earned by them, an order of maintenance cannot be justified, especially, if one has regard to the provision of section 36 of the Special Marriage Act, 1954 which provides that only when it appears to the Court that wife has no independent income sufficient for her support and necessary expenses of the proceedings, the Court can order the husband to pay her expenses of the proceeding and also interim maintenance. Here in the case the petitioner wife is having independent source of income. In such situation she cannot be entitled for interim maintenance. Since both the petitioner and respondent are on equal footing and earn more or less some income, the Family Court, has rightly rejected the wifes claim for interim maintenance.
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0[ds]13. This is a peculiar case in which both the husband and wife are highly qualified, well off and having their own independent sources of income. Respondent has done his Bachelor in Engineering from V.J.T.I, Matunga, Mumbai and Masters in Management Studies from NMIS, Mumbai. He is also Director of Xlrite Consulting Private Ltd and having his office at Bhagatsing Road, Mumbai. He owns Tata Indigo Car. Just before the proceeding in the Family Court were filed, he has sold out 2 BHK flat at Mulud (W) and was in the process of purchase of flat at Lokhandwala Complex. He stays in a bungalow, belonging to his father at NIBM Road, Pune. He has various bank accounts, numerous credit cards. His profile seen on screen shots produced on record of the Family Court indicates that his name is the owner of M/s Canary Recruitment and Training Consultancy. Respondent has not disputed the fact that he is running this Xlrite Consultancy Pvt. Ltd.14. However, respondent has produced on record the income tax returns of the last three years showing his income to be around Rs.1,80,000/per annum. As rightly pointed out by learned counsel for the petitioner, all these three returns are filed on the same date after the divorce petition was instituted in the Court. Hence much reliance cannot be placed on these income tax returns. Otherwise also, law is well settled that income tax return do not reflect true income of the parties and the Court has to assess the said income on the basis of documentary evidence.15. Here in the case, one can take into consideration the profile of the respondent husband filed on Jeevan Sathi.com stating his annual income around Rs.25 lacs and above and further states that he was having his own income from HR Recruitment and Consultancy Training Software Services for clients across India.16. It cannot be accepted that immediately after filing of the divorce petition his income is reduced. Conversely one can safely conclude that this attempt of showing reduced or no income, after filing of matrimonial proceeding appears to be a routine phenomena of which notice is taken by the Honble Supreme Court in Manish JainAkanksha Jain, CDJ 2017 SC 352, by observing in paragraph No. 39 ashas now become a matter of routine that as and when an application for maintenance is filed, the non applicant becomes poor displaying that he is not residing with the family members if they have a good business and movable and immovable properties in order to avoid payment of maintenance. Courts cannot under these circumstances close their eyes when tricks are being played in a clever manner17. Thus, the fact remains that respondent herein is well qualified and having regard to life style of both the parties, it can hardly be accepted that he is unable to contribute an amount of Rs.25,000/per month towards interim maintenance of his daughter Siddhi.18. In addition to that, as rightly held by the Family Court, respondent has to pay educational expenses of daughter Siddhi. Therefore, as regards the writ petition of respondent, this Court does not find any merit therein to entertain the same and hence the same deserves to be dismissed.19. As regards the writ petition of petitioner wife, as stated above she is also a very well qualified person. Her qualifications are MMS, HR, DBM, DID. She is convent educated. She had worked with the company for over 7 years. At present also in her maiden name, Shama Vasant Padale, she is Director of ERP Corporation Pvt. Ltd. Her name is accordingly registered with Ministry of Corporate Affairs. The print out thereof is also produced on record. Copy of her consent is also produced on record.20. When these documents were produced in the Court by respondent, she has filed an affidavit before the Family Court stating that she is only a nominal or formal Director and on account busy schedule of the child she is not in active participation in the work. However, the fact remains that she has not produced on record her income tax returns for the last three years to prove that she is not having any income therefrom. However, the respondent has produced on record documents to show that earlier petitioner was having 1/3 share in the said company as a Director and now one of the Directors having been resigned, she is practically having 50% share. Even if it is accepted that the offices of the said company are at Bangalore and at Mumbai and presently she is placed in Pune, being a Director, it is not necessary that she should participate actively in theaffairs of the company. She can exercise supervisory control over the affairs of the company even from Pune and get her share in the dividend and profits of the company. Therefore, her case that she is having no source of income at present and her father is maintaining her also cannot be accepted.21. Assuming that there is some difference in the earning and income of the petitioner and respondent, provisions of interim maintenance are not made for equalising their income but to ensure that either spouse does not suffer because of paucity of the income in the course of the proceeding. Where both the husband and wife are earning and having good income, merely because there is some difference in the respective income earned by them, an order of maintenance cannot be justified, especially, if one has regard to the provision of section 36 of the Special Marriage Act, 1954 which provides that only when it appears to the Court that wife has no independent income sufficient for her support and necessary expenses of the proceedings, the Court can order the husband to pay her expenses of the proceeding and also interim maintenance. Here in the case the petitioner wife is having independent source of income. In such situation she cannot be entitled for interim maintenance. Since both the petitioner and respondent are on equal footing and earn more or less some income, the Family Court, has rightly rejected the wifes claim for interim maintenance.
| 0 | 2,309 | 1,116 |
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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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sources of income. Respondent has done his Bachelor in Engineering from V.J.T.I, Matunga, Mumbai and Masters in Management Studies from NMIS, Mumbai. He is also Director of Xlrite Consulting Private Ltd and having his office at Bhagatsing Road, Mumbai. He owns Tata Indigo Car. Just before the proceeding in the Family Court were filed, he has sold out 2 BHK flat at Mulud (W) and was in the process of purchase of flat at Lokhandwala Complex. He stays in a bungalow, belonging to his father at NIBM Road, Pune. He has various bank accounts, numerous credit cards. His profile seen on screen shots produced on record of the Family Court indicates that his name is the owner of M/s Canary Recruitment and Training Consultancy. Respondent has not disputed the fact that he is running this Xlrite Consultancy Pvt. Ltd.14. However, respondent has produced on record the income tax returns of the last three years showing his income to be around Rs.1,80,000/- per annum. As rightly pointed out by learned counsel for the petitioner, all these three returns are filed on the same date after the divorce petition was instituted in the Court. Hence much reliance cannot be placed on these income tax returns. Otherwise also, law is well settled that income tax return do not reflect true income of the parties and the Court has to assess the said income on the basis of documentary evidence.15. Here in the case, one can take into consideration the profile of the respondent husband filed on Jeevan Sathi.com stating his annual income around Rs.25 lacs and above and further states that he was having his own income from HR Recruitment and Consultancy Training Software Services for clients across India.16. It cannot be accepted that immediately after filing of the divorce petition his income is reduced. Conversely one can safely conclude that this attempt of showing reduced or no income, after filing of matrimonial proceeding appears to be a routine phenomena of which notice is taken by the Honble Supreme Court in Manish Jain -vs- Akanksha Jain, CDJ 2017 SC 352, by observing in paragraph No. 39 as follows:-It has now become a matter of routine that as and when an application for maintenance is filed, the non applicant becomes poor displaying that he is not residing with the family members if they have a good business and movable and immovable properties in order to avoid payment of maintenance. Courts cannot under these circumstances close their eyes when tricks are being played in a clever manner17. Thus, the fact remains that respondent herein is well qualified and having regard to life style of both the parties, it can hardly be accepted that he is unable to contribute an amount of Rs.25,000/- per month towards interim maintenance of his daughter Siddhi.18. In addition to that, as rightly held by the Family Court, respondent has to pay educational expenses of daughter Siddhi. Therefore, as regards the writ petition of respondent, this Court does not find any merit therein to entertain the same and hence the same deserves to be dismissed.19. As regards the writ petition of petitioner wife, as stated above she is also a very well qualified person. Her qualifications are MMS, HR, DBM, DID. She is convent educated. She had worked with the company for over 7 years. At present also in her maiden name, Shama Vasant Padale, she is Director of ERP Corporation Pvt. Ltd. Her name is accordingly registered with Ministry of Corporate Affairs. The print out thereof is also produced on record. Copy of her consent is also produced on record.20. When these documents were produced in the Court by respondent, she has filed an affidavit before the Family Court stating that she is only a nominal or formal Director and on account busy schedule of the child she is not in active participation in the work. However, the fact remains that she has not produced on record her income tax returns for the last three years to prove that she is not having any income therefrom. However, the respondent has produced on record documents to show that earlier petitioner was having 1/3 share in the said company as a Director and now one of the Directors having been resigned, she is practically having 50% share. Even if it is accepted that the offices of the said company are at Bangalore and at Mumbai and presently she is placed in Pune, being a Director, it is not necessary that she should participate actively in the day-to-day affairs of the company. She can exercise supervisory control over the affairs of the company even from Pune and get her share in the dividend and profits of the company. Therefore, her case that she is having no source of income at present and her father is maintaining her also cannot be accepted.21. Assuming that there is some difference in the earning and income of the petitioner and respondent, provisions of interim maintenance are not made for equalising their income but to ensure that either spouse does not suffer because of paucity of the income in the course of the proceeding. Where both the husband and wife are earning and having good income, merely because there is some difference in the respective income earned by them, an order of maintenance cannot be justified, especially, if one has regard to the provision of section 36 of the Special Marriage Act, 1954 which provides that only when it appears to the Court that wife has no independent income sufficient for her support and necessary expenses of the proceedings, the Court can order the husband to pay her expenses of the proceeding and also interim maintenance. Here in the case the petitioner wife is having independent source of income. In such situation she cannot be entitled for interim maintenance. Since both the petitioner and respondent are on equal footing and earn more or less some income, the Family Court, has rightly rejected the wifes claim for interim maintenance.
### Response:
0
### Explanation:
qualified, well off and having their own independent sources of income. Respondent has done his Bachelor in Engineering from V.J.T.I, Matunga, Mumbai and Masters in Management Studies from NMIS, Mumbai. He is also Director of Xlrite Consulting Private Ltd and having his office at Bhagatsing Road, Mumbai. He owns Tata Indigo Car. Just before the proceeding in the Family Court were filed, he has sold out 2 BHK flat at Mulud (W) and was in the process of purchase of flat at Lokhandwala Complex. He stays in a bungalow, belonging to his father at NIBM Road, Pune. He has various bank accounts, numerous credit cards. His profile seen on screen shots produced on record of the Family Court indicates that his name is the owner of M/s Canary Recruitment and Training Consultancy. Respondent has not disputed the fact that he is running this Xlrite Consultancy Pvt. Ltd.14. However, respondent has produced on record the income tax returns of the last three years showing his income to be around Rs.1,80,000/per annum. As rightly pointed out by learned counsel for the petitioner, all these three returns are filed on the same date after the divorce petition was instituted in the Court. Hence much reliance cannot be placed on these income tax returns. Otherwise also, law is well settled that income tax return do not reflect true income of the parties and the Court has to assess the said income on the basis of documentary evidence.15. Here in the case, one can take into consideration the profile of the respondent husband filed on Jeevan Sathi.com stating his annual income around Rs.25 lacs and above and further states that he was having his own income from HR Recruitment and Consultancy Training Software Services for clients across India.16. It cannot be accepted that immediately after filing of the divorce petition his income is reduced. Conversely one can safely conclude that this attempt of showing reduced or no income, after filing of matrimonial proceeding appears to be a routine phenomena of which notice is taken by the Honble Supreme Court in Manish JainAkanksha Jain, CDJ 2017 SC 352, by observing in paragraph No. 39 ashas now become a matter of routine that as and when an application for maintenance is filed, the non applicant becomes poor displaying that he is not residing with the family members if they have a good business and movable and immovable properties in order to avoid payment of maintenance. Courts cannot under these circumstances close their eyes when tricks are being played in a clever manner17. Thus, the fact remains that respondent herein is well qualified and having regard to life style of both the parties, it can hardly be accepted that he is unable to contribute an amount of Rs.25,000/per month towards interim maintenance of his daughter Siddhi.18. In addition to that, as rightly held by the Family Court, respondent has to pay educational expenses of daughter Siddhi. Therefore, as regards the writ petition of respondent, this Court does not find any merit therein to entertain the same and hence the same deserves to be dismissed.19. As regards the writ petition of petitioner wife, as stated above she is also a very well qualified person. Her qualifications are MMS, HR, DBM, DID. She is convent educated. She had worked with the company for over 7 years. At present also in her maiden name, Shama Vasant Padale, she is Director of ERP Corporation Pvt. Ltd. Her name is accordingly registered with Ministry of Corporate Affairs. The print out thereof is also produced on record. Copy of her consent is also produced on record.20. When these documents were produced in the Court by respondent, she has filed an affidavit before the Family Court stating that she is only a nominal or formal Director and on account busy schedule of the child she is not in active participation in the work. However, the fact remains that she has not produced on record her income tax returns for the last three years to prove that she is not having any income therefrom. However, the respondent has produced on record documents to show that earlier petitioner was having 1/3 share in the said company as a Director and now one of the Directors having been resigned, she is practically having 50% share. Even if it is accepted that the offices of the said company are at Bangalore and at Mumbai and presently she is placed in Pune, being a Director, it is not necessary that she should participate actively in theaffairs of the company. She can exercise supervisory control over the affairs of the company even from Pune and get her share in the dividend and profits of the company. Therefore, her case that she is having no source of income at present and her father is maintaining her also cannot be accepted.21. Assuming that there is some difference in the earning and income of the petitioner and respondent, provisions of interim maintenance are not made for equalising their income but to ensure that either spouse does not suffer because of paucity of the income in the course of the proceeding. Where both the husband and wife are earning and having good income, merely because there is some difference in the respective income earned by them, an order of maintenance cannot be justified, especially, if one has regard to the provision of section 36 of the Special Marriage Act, 1954 which provides that only when it appears to the Court that wife has no independent income sufficient for her support and necessary expenses of the proceedings, the Court can order the husband to pay her expenses of the proceeding and also interim maintenance. Here in the case the petitioner wife is having independent source of income. In such situation she cannot be entitled for interim maintenance. Since both the petitioner and respondent are on equal footing and earn more or less some income, the Family Court, has rightly rejected the wifes claim for interim maintenance.
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Babulal Khandelwal Vs. Balkishan D. Singhvi
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acts as an order in rem. Ms. Arora submitted that even on such score, the appellants were not necessary parties to the administration suit and their impleadment in the suit by the High Court was wholly erroneous. In support of her said argument, Ms. Arora referred to and relied upon the judgment of this Court in the case of Chiranjilal Shrilal Goenka vs. Jasjit Singh & Ors. [1993 (2) SCC 507 ], wherein Ms. Aroras submissions are fully reflected with approval. Reference was also made to the decision of this Court in (1) Ghulam Qadir vs. Special Tribunal and Ors.,[2002 (1) SCC 33 ] and (2) Krishna Kumar Birla vs. Rajendra Singh Lodha and Ors. [2008 (4) SCC 300 ], where the same views have been expressed.8. Ms. Aroras submissions were opposed by Mr. Hariharan and Mr. Subramonium Prasad, learned advocates, who appeared for the respondent No.1. It was submitted that when the Estate of a deceased is involved, the Court in seisin of the proceedings relating to the administration of the said Estate was entitled to scrutinize transactions which had taken place in respect of any property forming part of such Estate. It was submitted that, in fact, such a course of action was also pragmatic as it would eliminate the prospect of multiplicity of proceedings. 9. Mr. Subramonium Prasad submitted that the High Court had quite correctly allowed the impleadment of the appellants in the suit filed by the respondent No.1 where all questions relating to and involving the Estate of Dwarkadas Sanghvi and Vimlaben Sanghvi would be resolved with finality. 10. Having considered the rival submissions of the parties, we are unable to accept Ms. Aroras objections to the impleadment of the appellants as necessary parties in the administration suit filed by the respondent No. 1, particularly when both Dwarkadas Sanghvi and Vimlaben Sanghvi had died intestate. 11. It is well settled that in an administration suit, the Court, while considering the grant of authority to an individual having an interest in the Estate of the deceased to administer the Estate, has also to determine the extent of the estate of the deceased at the time of his death to facilitate the distribution of the estate to all the heirs of the deceased. It is equally well settled that during such enquiry the Court is not called upon to determine the right and title of the parties in the properties of the Estate, but to ascertain the extent of the properties of the Estate. The decision in Chiranjilal Shrilal Goenkas case (supra), applies to probate proceedings where it has been held that the probate Court does not decide any question of title or even the existence of the property itself. In administration suits in respect of a person who dies intestate, the position is different. The Court while appointing an Administrator in an administration suit to administer the Estate of the decease, who dies intestate, may be required to examine transactions involving the properties of the Estate in order to determine the assets of the Estate as on the date of death of the owner thereof. Consequently, the impleadment of persons who may be involved in some transaction or the other concerning the Estate of the deceased, may become necessary for a decision in an administration suit. The High Court has noted this fact while allowing the prayer of the respondent No.1 for impleading the appellants as parties to the administration suit. 12. The decisions cited by Ms. Arora are in relation to Probate proceedings where either probate is to be granted or Letters of Administration are to be given to an applicant having an interest in the Estate of the deceased. The circumstances in an administration suit where a person dies intestate are, however, different. The learned Single Judge of the High Court has correctly indicated that in an administration suit, the dispute between the parties relating to the title of the deceased in respect of his properties, can be gone into in an administration suit and that there is no bar to a Court determining the validity of transactions allegedly entered into by or on behalf of the deceased, whose Estate is to be administered. In Appendix "D" to the Code of Civil Procedure which deals with the forms of decrees in different suits, Form 17 indicates the form in which preliminary decrees in Administration Suits are to be passed. Paragraph 3 of the Form deals with suits filed by the next of kin of the deceased who dies intestate, as in the instant case, and provides for an inquiry to be made and account taken of what or of what share, if any, the plaintiff is entitled to as next-of-kin in the moveable properties of the Estate. However, if the moveable properties of the deceased are found to be insufficient for carrying out the objects of the suit, then by virtue of paragraph 10 of the Form the Court may order an inquiry as to what immovable property the deceased was seized of or entitled to at the time of his death and what encumbrances, if any, affect the immovable property of the deceased or any part thereof. The said inquiry, in our view might also include the transactions with the appellants herein which had purportedly been concluded by the owners of the properties themselves during their life time, in order to ascertain whether the said properties continued to form part of the Estate of the deceased at the time of their death. 13. We, therefore, have little hesitation in holding that the High Court had not committed any error in allowing the amendments to the plaint which had the effect of impleading the appellants as parties to the administration suit filed by the respondent No.1 and permitting the respondent No.1 to question the transactions entered into by the owners of the Estate with third parties. The order of the High Court does not warrant any interference and the appeal must, therefore, be dismissed.14.
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0[ds]The circumstances in an administration suit where a person dies intestate are, however, different. The learned Single Judge of the High Court has correctly indicated that in an administration suit, the dispute between the parties relating to the title of the deceased in respect of his properties, can be gone into in an administration suit and that there is no bar to a Court determining the validity of transactions allegedly entered into by or on behalf of the deceased, whose Estate is to be administered. In Appendix "D" to the Code of Civil Procedure which deals with the forms of decrees in different suits, Form 17 indicates the form in which preliminary decrees in Administration Suits are to be passed. Paragraph 3 of the Form deals with suits filed by the next of kin of the deceased who dies intestate, as in the instant case, and provides for an inquiry to be made and account taken of what or of what share, if any, the plaintiff is entitled to as next-of-kin in the moveable properties of the Estate. However, if the moveable properties of the deceased are found to be insufficient for carrying out the objects of the suit, then by virtue of paragraph 10 of the Form the Court may order an inquiry as to what immovable property the deceased was seized of or entitled to at the time of his death and what encumbrances, if any, affect the immovable property of the deceased or any part thereof. The said inquiry, in our view might also include the transactions with the appellants herein which had purportedly been concluded by the owners of the properties themselves during their life time, in order to ascertain whether the said properties continued to form part of the Estate of the deceased at the time of theirtherefore, have little hesitation in holding that the High Court had not committed any error in allowing the amendments to the plaint which had the effect of impleading the appellants as parties to the administration suit filed by the respondent No.1 and permitting the respondent No.1 to question the transactions entered into by the owners of the Estate with third parties. The order of the High Court does not warrant any interference and the appeal must, therefore, be dismissed.
| 0 | 1,679 | 413 |
### 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:
acts as an order in rem. Ms. Arora submitted that even on such score, the appellants were not necessary parties to the administration suit and their impleadment in the suit by the High Court was wholly erroneous. In support of her said argument, Ms. Arora referred to and relied upon the judgment of this Court in the case of Chiranjilal Shrilal Goenka vs. Jasjit Singh & Ors. [1993 (2) SCC 507 ], wherein Ms. Aroras submissions are fully reflected with approval. Reference was also made to the decision of this Court in (1) Ghulam Qadir vs. Special Tribunal and Ors.,[2002 (1) SCC 33 ] and (2) Krishna Kumar Birla vs. Rajendra Singh Lodha and Ors. [2008 (4) SCC 300 ], where the same views have been expressed.8. Ms. Aroras submissions were opposed by Mr. Hariharan and Mr. Subramonium Prasad, learned advocates, who appeared for the respondent No.1. It was submitted that when the Estate of a deceased is involved, the Court in seisin of the proceedings relating to the administration of the said Estate was entitled to scrutinize transactions which had taken place in respect of any property forming part of such Estate. It was submitted that, in fact, such a course of action was also pragmatic as it would eliminate the prospect of multiplicity of proceedings. 9. Mr. Subramonium Prasad submitted that the High Court had quite correctly allowed the impleadment of the appellants in the suit filed by the respondent No.1 where all questions relating to and involving the Estate of Dwarkadas Sanghvi and Vimlaben Sanghvi would be resolved with finality. 10. Having considered the rival submissions of the parties, we are unable to accept Ms. Aroras objections to the impleadment of the appellants as necessary parties in the administration suit filed by the respondent No. 1, particularly when both Dwarkadas Sanghvi and Vimlaben Sanghvi had died intestate. 11. It is well settled that in an administration suit, the Court, while considering the grant of authority to an individual having an interest in the Estate of the deceased to administer the Estate, has also to determine the extent of the estate of the deceased at the time of his death to facilitate the distribution of the estate to all the heirs of the deceased. It is equally well settled that during such enquiry the Court is not called upon to determine the right and title of the parties in the properties of the Estate, but to ascertain the extent of the properties of the Estate. The decision in Chiranjilal Shrilal Goenkas case (supra), applies to probate proceedings where it has been held that the probate Court does not decide any question of title or even the existence of the property itself. In administration suits in respect of a person who dies intestate, the position is different. The Court while appointing an Administrator in an administration suit to administer the Estate of the decease, who dies intestate, may be required to examine transactions involving the properties of the Estate in order to determine the assets of the Estate as on the date of death of the owner thereof. Consequently, the impleadment of persons who may be involved in some transaction or the other concerning the Estate of the deceased, may become necessary for a decision in an administration suit. The High Court has noted this fact while allowing the prayer of the respondent No.1 for impleading the appellants as parties to the administration suit. 12. The decisions cited by Ms. Arora are in relation to Probate proceedings where either probate is to be granted or Letters of Administration are to be given to an applicant having an interest in the Estate of the deceased. The circumstances in an administration suit where a person dies intestate are, however, different. The learned Single Judge of the High Court has correctly indicated that in an administration suit, the dispute between the parties relating to the title of the deceased in respect of his properties, can be gone into in an administration suit and that there is no bar to a Court determining the validity of transactions allegedly entered into by or on behalf of the deceased, whose Estate is to be administered. In Appendix "D" to the Code of Civil Procedure which deals with the forms of decrees in different suits, Form 17 indicates the form in which preliminary decrees in Administration Suits are to be passed. Paragraph 3 of the Form deals with suits filed by the next of kin of the deceased who dies intestate, as in the instant case, and provides for an inquiry to be made and account taken of what or of what share, if any, the plaintiff is entitled to as next-of-kin in the moveable properties of the Estate. However, if the moveable properties of the deceased are found to be insufficient for carrying out the objects of the suit, then by virtue of paragraph 10 of the Form the Court may order an inquiry as to what immovable property the deceased was seized of or entitled to at the time of his death and what encumbrances, if any, affect the immovable property of the deceased or any part thereof. The said inquiry, in our view might also include the transactions with the appellants herein which had purportedly been concluded by the owners of the properties themselves during their life time, in order to ascertain whether the said properties continued to form part of the Estate of the deceased at the time of their death. 13. We, therefore, have little hesitation in holding that the High Court had not committed any error in allowing the amendments to the plaint which had the effect of impleading the appellants as parties to the administration suit filed by the respondent No.1 and permitting the respondent No.1 to question the transactions entered into by the owners of the Estate with third parties. The order of the High Court does not warrant any interference and the appeal must, therefore, be dismissed.14.
### Response:
0
### Explanation:
The circumstances in an administration suit where a person dies intestate are, however, different. The learned Single Judge of the High Court has correctly indicated that in an administration suit, the dispute between the parties relating to the title of the deceased in respect of his properties, can be gone into in an administration suit and that there is no bar to a Court determining the validity of transactions allegedly entered into by or on behalf of the deceased, whose Estate is to be administered. In Appendix "D" to the Code of Civil Procedure which deals with the forms of decrees in different suits, Form 17 indicates the form in which preliminary decrees in Administration Suits are to be passed. Paragraph 3 of the Form deals with suits filed by the next of kin of the deceased who dies intestate, as in the instant case, and provides for an inquiry to be made and account taken of what or of what share, if any, the plaintiff is entitled to as next-of-kin in the moveable properties of the Estate. However, if the moveable properties of the deceased are found to be insufficient for carrying out the objects of the suit, then by virtue of paragraph 10 of the Form the Court may order an inquiry as to what immovable property the deceased was seized of or entitled to at the time of his death and what encumbrances, if any, affect the immovable property of the deceased or any part thereof. The said inquiry, in our view might also include the transactions with the appellants herein which had purportedly been concluded by the owners of the properties themselves during their life time, in order to ascertain whether the said properties continued to form part of the Estate of the deceased at the time of theirtherefore, have little hesitation in holding that the High Court had not committed any error in allowing the amendments to the plaint which had the effect of impleading the appellants as parties to the administration suit filed by the respondent No.1 and permitting the respondent No.1 to question the transactions entered into by the owners of the Estate with third parties. The order of the High Court does not warrant any interference and the appeal must, therefore, be dismissed.
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Makers Devt.Services P.Ltd Vs. M. Visvesvaraya Indusl.Res.& Dev.Cen
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Suit, the Defendant by itself, its servants and agents or any person or persons claiming by, from, through or under them be restrained by an order and injunction of this Court from, in any manner, selling transferring, dealing with, disposing of, alienating encumbering or creating any third party rights or interest in, or entering into any agreement or arrangement with any one else in respect of the Suit Land or any part thereof; 9) Among the above prayers for interim reliefs, the learned single Judge granted relief only in respect of prayer clause (g) that too with a condition, namely, except the words dealing with. The learned single Judge on satisfying himself and after thorough scrutiny of the materials placed rejected the relief insofar as prayer clauses (a) to (f), which resulted in filing of above two appeals by the appellant and the defendant. It is the claim of the appellant/plaintiff that on the basis of the contract between the parties, the learned single Judge and the Division Bench should have granted an order permitting the appellant to carry on further construction especially when construction of about 80 ft. had already been raised by the appellant on the suit land. On the other hand, it is the case of the defendant that there is no existing agreement between the parties and the only point is that the parties have agreed to enter into an agreement and, therefore, the learned single Judge as well as the Division bench were not justified even in granting interim order in terms of prayer (g). 10) Inasmuch as the main suit is pending, it would not be proper for this Court to delve into the matter and arrive at a categorical finding one way or other. Accordingly, we have to find out whether there is prima facie case and `balance of convenience in terms of principles mentioned above. 11) The finding of the learned single Judge about the construction of the building to the height of 80 ft. on the suit land by the appellant cannot be ignored. However, whether the defendant permitted the appellant to enter on the suit land and to carry on construction are all matters to be decided in the main suit. The limited relief granted in clause (g) by the learned single Judge is quite understandable, otherwise, it could be possible for the defendant to deal with the suit land with third parties or encumber it before the final disposal of the suit. However, as rightly observed by the learned single Judge as well as Division Bench, if other reliefs which we have already extracted above are granted, in the event of dismissal of a suit, undoubtedly, it would create enormous difficulties for the defendant using the plot or land freely and without any difficulty. In other words, if the appellant was allowed to proceed with the construction on the suit land, in the event of dismissal of suit, the defendant cannot use the land in a different manner with the structure without undertaking an enormous exercise of demolishing the same. Further, what was claimed by the plaintiff was not a mere prohibitory order but prayed for positive mandatory injunction which, as rightly observed by the Division Bench, would permit the plaintiff to alter the status quo on the suit land on the date of the suit. 12) The learned single Judge as well as Division Bench on appreciation of entire materials rendered the factual finding that the balance of convenience is not in favour of granting such mandatory interim order as claimed in prayer clauses (a) to (f). It is relevant to point out that though the appellant had stated that it had started construction in the year 1996, even after the information by the defendant to the appellant in 2002 that the BEST had given their `no objection for the demolition of temporary receiving station and the appellant can proceed with the demolition, however, the fact remains, the height of the construction was only 80 ft. which shows that from the year 2001 to 2007, the appellant had not carried on construction and there was no obstruction from the side of the defendant. In view of all these factual aspects and in the light of the stand of the defendant disputing the existence of the agreement, as rightly observed by the learned single Judge as well as Division Bench, further permission for construction or ancillary works cannot be granted during the pendency of the suit. We are satisfied that the learned single Judge was fully justified in granting limited relief in respect of prayer clause (g) and declined the other reliefs in clauses (a) to (f). The Division Bench was also fully justified in confirming the said limited order. Though learned senior counsel for the respondent has prayed for certain directions such as execution of a mortgage deed etc., for the same reasons mentioned above, we are not inclined to grant such relief as claimed. As observed earlier, at this stage, it is not desirable to go into all the details and render a specific finding which would undoubtedly affect the claim of both the parties in the main suit. On the other hand, we are in entire agreement with the prima facie conclusion arrived at by the learned single Judge and the Division Bench. 13) Inasmuch as, as early as on 25.04.2008, the learned single Judge directed hearing of the suit be expedited, taking note of various other aspects/impediments highlighted by both the parties including construction of a protection/security wall on the sea side, we request the learned single Judge of the High Court to dispose of the suit being No. 2618 of 2007 as early as possible preferably within a period of nine months from the date of the receipt of the copy of this judgment. We also direct both the parties to cooperate with the court for early conclusion of the hearing as directed above. 14) In the light of the above discussion and reasonings,
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0[ds]The finding of the learned single Judge about the construction of the building to the height of 80 ft. on the suit land by the appellant cannot be ignored. However, whether the defendant permitted the appellant to enter on the suit land and to carry on construction are all matters to be decided in the main suit. The limited relief granted in clause (g) by the learned single Judge is quite understandable, otherwise, it could be possible for the defendant to deal with the suit land with third parties or encumber it before the final disposal of the suit. However, as rightly observed by the learned single Judge as well as Division Bench, if other reliefs which we have already extracted above are granted, in the event of dismissal of a suit, undoubtedly, it would create enormous difficulties for the defendant using the plot or land freely and without any difficulty. In other words, if the appellant was allowed to proceed with the construction on the suit land, in the event of dismissal of suit, the defendant cannot use the land in a different manner with the structure without undertaking an enormous exercise of demolishing the same. Further, what was claimed by the plaintiff was not a mere prohibitory order but prayed for positive mandatory injunction which, as rightly observed by the Division Bench, would permit the plaintiff to alter the status quo on the suit land on the date of the suit12) The learned single Judge as well as Division Bench on appreciation of entire materials rendered the factual finding that the balance of convenience is not in favour of granting such mandatory interim order as claimed in prayer clauses (a) to (f). It is relevant to point out that though the appellant had stated that it had started construction in the year 1996, even after the information by the defendant to the appellant in 2002 that the BEST had given their `no objection for the demolition of temporary receiving station and the appellant can proceed with the demolition, however, the fact remains, the height of the construction was only 80 ft. which shows that from the year 2001 to 2007, the appellant had not carried on construction and there was no obstruction from the side of the defendant. In view of all these factual aspects and in the light of the stand of the defendant disputing the existence of the agreement, as rightly observed by the learned single Judge as well as Division Bench, further permission for construction or ancillary works cannot be granted during the pendency of the suit. We are satisfied that the learned single Judge was fully justified in granting limited relief in respect of prayer clause (g) and declined the other reliefs in clauses (a) to (f). The Division Bench was also fully justified in confirming the said limited order. Though learned senior counsel for the respondent has prayed for certain directions such as execution of a mortgage deed etc., for the same reasons mentioned above, we are not inclined to grant such relief as claimed. As observed earlier, at this stage, it is not desirable to go into all the details and render a specific finding which would undoubtedly affect the claim of both the parties in the main suit. On the other hand, we are in entire agreement with the prima facie conclusion arrived at by the learned single Judge and the Division Bench13) Inasmuch as, as early as on 25.04.2008, the learned single Judge directed hearing of the suit be expedited, taking note of various other aspects/impediments highlighted by both the parties including construction of a protection/security wall on the sea side, we request the learned single Judge of the High Court to dispose of the suit being No. 2618 of 2007 as early as possible preferably within a period of nine months from the date of the receipt of the copy of this judgment. We also direct both the parties to cooperate with the court for early conclusion of the hearing as directed above.
| 0 | 2,913 | 741 |
### 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:
Suit, the Defendant by itself, its servants and agents or any person or persons claiming by, from, through or under them be restrained by an order and injunction of this Court from, in any manner, selling transferring, dealing with, disposing of, alienating encumbering or creating any third party rights or interest in, or entering into any agreement or arrangement with any one else in respect of the Suit Land or any part thereof; 9) Among the above prayers for interim reliefs, the learned single Judge granted relief only in respect of prayer clause (g) that too with a condition, namely, except the words dealing with. The learned single Judge on satisfying himself and after thorough scrutiny of the materials placed rejected the relief insofar as prayer clauses (a) to (f), which resulted in filing of above two appeals by the appellant and the defendant. It is the claim of the appellant/plaintiff that on the basis of the contract between the parties, the learned single Judge and the Division Bench should have granted an order permitting the appellant to carry on further construction especially when construction of about 80 ft. had already been raised by the appellant on the suit land. On the other hand, it is the case of the defendant that there is no existing agreement between the parties and the only point is that the parties have agreed to enter into an agreement and, therefore, the learned single Judge as well as the Division bench were not justified even in granting interim order in terms of prayer (g). 10) Inasmuch as the main suit is pending, it would not be proper for this Court to delve into the matter and arrive at a categorical finding one way or other. Accordingly, we have to find out whether there is prima facie case and `balance of convenience in terms of principles mentioned above. 11) The finding of the learned single Judge about the construction of the building to the height of 80 ft. on the suit land by the appellant cannot be ignored. However, whether the defendant permitted the appellant to enter on the suit land and to carry on construction are all matters to be decided in the main suit. The limited relief granted in clause (g) by the learned single Judge is quite understandable, otherwise, it could be possible for the defendant to deal with the suit land with third parties or encumber it before the final disposal of the suit. However, as rightly observed by the learned single Judge as well as Division Bench, if other reliefs which we have already extracted above are granted, in the event of dismissal of a suit, undoubtedly, it would create enormous difficulties for the defendant using the plot or land freely and without any difficulty. In other words, if the appellant was allowed to proceed with the construction on the suit land, in the event of dismissal of suit, the defendant cannot use the land in a different manner with the structure without undertaking an enormous exercise of demolishing the same. Further, what was claimed by the plaintiff was not a mere prohibitory order but prayed for positive mandatory injunction which, as rightly observed by the Division Bench, would permit the plaintiff to alter the status quo on the suit land on the date of the suit. 12) The learned single Judge as well as Division Bench on appreciation of entire materials rendered the factual finding that the balance of convenience is not in favour of granting such mandatory interim order as claimed in prayer clauses (a) to (f). It is relevant to point out that though the appellant had stated that it had started construction in the year 1996, even after the information by the defendant to the appellant in 2002 that the BEST had given their `no objection for the demolition of temporary receiving station and the appellant can proceed with the demolition, however, the fact remains, the height of the construction was only 80 ft. which shows that from the year 2001 to 2007, the appellant had not carried on construction and there was no obstruction from the side of the defendant. In view of all these factual aspects and in the light of the stand of the defendant disputing the existence of the agreement, as rightly observed by the learned single Judge as well as Division Bench, further permission for construction or ancillary works cannot be granted during the pendency of the suit. We are satisfied that the learned single Judge was fully justified in granting limited relief in respect of prayer clause (g) and declined the other reliefs in clauses (a) to (f). The Division Bench was also fully justified in confirming the said limited order. Though learned senior counsel for the respondent has prayed for certain directions such as execution of a mortgage deed etc., for the same reasons mentioned above, we are not inclined to grant such relief as claimed. As observed earlier, at this stage, it is not desirable to go into all the details and render a specific finding which would undoubtedly affect the claim of both the parties in the main suit. On the other hand, we are in entire agreement with the prima facie conclusion arrived at by the learned single Judge and the Division Bench. 13) Inasmuch as, as early as on 25.04.2008, the learned single Judge directed hearing of the suit be expedited, taking note of various other aspects/impediments highlighted by both the parties including construction of a protection/security wall on the sea side, we request the learned single Judge of the High Court to dispose of the suit being No. 2618 of 2007 as early as possible preferably within a period of nine months from the date of the receipt of the copy of this judgment. We also direct both the parties to cooperate with the court for early conclusion of the hearing as directed above. 14) In the light of the above discussion and reasonings,
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0
### Explanation:
The finding of the learned single Judge about the construction of the building to the height of 80 ft. on the suit land by the appellant cannot be ignored. However, whether the defendant permitted the appellant to enter on the suit land and to carry on construction are all matters to be decided in the main suit. The limited relief granted in clause (g) by the learned single Judge is quite understandable, otherwise, it could be possible for the defendant to deal with the suit land with third parties or encumber it before the final disposal of the suit. However, as rightly observed by the learned single Judge as well as Division Bench, if other reliefs which we have already extracted above are granted, in the event of dismissal of a suit, undoubtedly, it would create enormous difficulties for the defendant using the plot or land freely and without any difficulty. In other words, if the appellant was allowed to proceed with the construction on the suit land, in the event of dismissal of suit, the defendant cannot use the land in a different manner with the structure without undertaking an enormous exercise of demolishing the same. Further, what was claimed by the plaintiff was not a mere prohibitory order but prayed for positive mandatory injunction which, as rightly observed by the Division Bench, would permit the plaintiff to alter the status quo on the suit land on the date of the suit12) The learned single Judge as well as Division Bench on appreciation of entire materials rendered the factual finding that the balance of convenience is not in favour of granting such mandatory interim order as claimed in prayer clauses (a) to (f). It is relevant to point out that though the appellant had stated that it had started construction in the year 1996, even after the information by the defendant to the appellant in 2002 that the BEST had given their `no objection for the demolition of temporary receiving station and the appellant can proceed with the demolition, however, the fact remains, the height of the construction was only 80 ft. which shows that from the year 2001 to 2007, the appellant had not carried on construction and there was no obstruction from the side of the defendant. In view of all these factual aspects and in the light of the stand of the defendant disputing the existence of the agreement, as rightly observed by the learned single Judge as well as Division Bench, further permission for construction or ancillary works cannot be granted during the pendency of the suit. We are satisfied that the learned single Judge was fully justified in granting limited relief in respect of prayer clause (g) and declined the other reliefs in clauses (a) to (f). The Division Bench was also fully justified in confirming the said limited order. Though learned senior counsel for the respondent has prayed for certain directions such as execution of a mortgage deed etc., for the same reasons mentioned above, we are not inclined to grant such relief as claimed. As observed earlier, at this stage, it is not desirable to go into all the details and render a specific finding which would undoubtedly affect the claim of both the parties in the main suit. On the other hand, we are in entire agreement with the prima facie conclusion arrived at by the learned single Judge and the Division Bench13) Inasmuch as, as early as on 25.04.2008, the learned single Judge directed hearing of the suit be expedited, taking note of various other aspects/impediments highlighted by both the parties including construction of a protection/security wall on the sea side, we request the learned single Judge of the High Court to dispose of the suit being No. 2618 of 2007 as early as possible preferably within a period of nine months from the date of the receipt of the copy of this judgment. We also direct both the parties to cooperate with the court for early conclusion of the hearing as directed above.
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Navalkha & Sons Vs. Sri Ramanya Das & Ors
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, it was pointed out that the condition of confirmation by the Court being a safeguard against the property being sold at an inadequate price, it will be not only proper but necessary that the Court in exercising the discretion which it undoubtedly has of accepting or refusing the highest bid at the auction held in pursuance of its orders, should see that the price fetched at the auction is an adequate price even though there is no suggestion of irregularity or fraud. It is well to bear in mind the other principle which is equally well settled namely that once the court comes to the conclusion that the price offered is adequate, no subsequent higher offer can constitute a valid ground for refusing confirmation of the sale or offer already received. (See the decision of the Madras High Court in Roshan and Co.s case, AIR 1940 Mad 42 ).7. In the present case the Division Bench has come to the conclusion that publicity was not as wide as originally proposed by the Commissioners in their affidavit. The publication was made in four dailies namely The Hindu, Indian Express, Hindustan Times and The Statesman. There was no publication in the Times of India. Further out of the four newspapers in which publication was made only in two there were two insertions and in the remaining two there was only one insertion. This was contrary to what the Commissioners have promised in their affidavit dated July 8, 1964. No doubt, other efforts were made for giving publicity but these efforts were not sufficient to attract more than one offer. When the case came for confirmation on December 24, 1964 there was an application by Babukhan that the property was of much higher value and that fresh offers must be invited again with wider publicity. There is also the affidavit of the State Government dated August 29, 1963 in which the value of the property was shown as Rs. 13,40,000/-. Besides, on that very day, one Gopaldas Darak had come before the Court with a higher offer showing his bona fides and earnestness by depositing more than one lakh of rupees. He came with the complaint that there was not sufficient publicity as to attract people from the north and that as soon as he came to know he gave his offer. In these circumstances the learned single Judge was right in expressing his reluctance to confirm the offer of Navalkha and Sons. He therefore decided to have an open bid as between the appellant and Darak in the court itself on that very day. The complaint of Padam Chand Agarwal is that the second step taken by the Single Judge of holding an auction without giving wide publicity was not justified in law.Rule 273 of the Companies (Court) Rules provides that all sales shall be made by public auction or by inviting sealed tenders or in such manner as the Judge may direct.It appears that on April 17, 1964 at the instance of the Official Liquidator and at the instance of a contributory the Court had approved of the terms and conditions of sale which provide for calling of sealed tenders. On December 24, 1964 the learned Judge realised the inefficacy of this course and decided to abandon the original procedure and put the properties to auction. But having made up his mind to resort to auction the learned Judge confined the auction to only two persons namely the previous tenderer and the fresh tenderer.The auction in question no doubt was conducted in a public place but it was not a public auction because it was not open to the general public but was confined to two named persons. Secondly it was not held after due publicity. It was held immediately after it was decided upon. It is, therefore, obvious that the sale in question was not a public sale which implies sale after giving notice to the public wherein every member of the public is at liberty to participate.No doubt, the device resorted to considerably raised the previous bid yet it was not an adequate price having regard to the market value of the property to which reference has already been made.The denial of opportunity to purchase the property by persons who would have taken part in the auction bid but for want of notice is a serious matter.In our opinion the learned Judge having decided on December 24, 1964 that the property should be put to auction should have directed auction by public sale instead of confining it to two persons alone. Since there was want of publicity and there was lack of opportunity to the public to take part in the auction the acceptance of the highest bid by the learned Judge was not a sound exercise of discretion. It is contended on behalf of the appellant that confirmation was discretionary with the court and the Division Bench ought not to have interfered with the discretion exercised by the Company Judge.It is true that the discretion exercised by the Judge ought not to be interfered with unless the Judge has gone wrong on principle.As already pointed out the learned Company Judge having decided to put the property to auction went wrong in not holding the auction as a public auction after due publicity and this has resulted in prejudice to the Company and the creditors in that the auction did not fetch adequate price.The prejudice was inherent in the method adopted.The petition of Padam Chand Agarwal also suggests that want of publicity, had resulted in prejudice. In these circumstances the Company Judge ought not to have confirmed the bid of the appellant in the auction held on December 24, 1964.We are accordingly of opinion that the Division Bench was right in holding that the order of the Company Judge dated February 19, 1965 should be set aside and there should be fresh sale of the property either by calling sealed tenders or by auction in accordance with law.
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1[ds]6. The principles which should govern confirmation of sales are well established.Where the acceptance of the offer by the Commissioners is subject to confirmation of the Court the offeror does not by mere acceptance get any vested right in the property so that he may demand automatic confirmation of his offer. The condition of confirmation by the Court operates as a safeguard against the property being sold at inadequate price whether or not it is a consequence of any irregularity or fraud in the conduct of the sale. In every case it is the duty of the Court to satisfy itself that having regard to the market value of the property the price offered is reasonable. Unless the Court is satisfied about the adequacy of the price the act of confirmation of the sale would not be a proper exercise of judicial discretion.In the present case the Division Bench has come to the conclusion that publicity was not as wide as originally proposed by the Commissioners in their affidavit. The publication was made in four dailies namely The Hindu, Indian Express, Hindustan Times and The Statesman. There was no publication in the Times of India. Further out of the four newspapers in which publication was made only in two there were two insertions and in the remaining two there was only one insertion. This was contrary to what the Commissioners have promised in their affidavit dated July 8, 1964. No doubt, other efforts were made for giving publicity but these efforts were not sufficient to attract more than one offer. When the case came for confirmation on December 24, 1964 there was an application by Babukhan that the property was of much higher value and that fresh offers must be invited again with wider publicity. There is also the affidavit of the State Government dated August 29, 1963 in which the value of the property was shown as Rs. 13,40,000/-. Besides, on that very day, one Gopaldas Darak had come before the Court with a higher offer showing his bona fides and earnestness by depositing more than one lakh of rupees. He came with the complaint that there was not sufficient publicity as to attract people from the north and that as soon as he came to know he gave his offer. In these circumstances the learned single Judge was right in expressing his reluctance to confirm the offer of Navalkha and Sons. He therefore decided to have an open bid as between the appellant and Darak in the court itself on that very day. The complaint of Padam Chand Agarwal is that the second step taken by the Single Judge of holding an auction without giving wide publicity was not justified in law.Rule 273 of the Companies (Court) Rules provides that all sales shall be made by public auction or by inviting sealed tenders or in such manner as the Judge may direct.It appears that on April 17, 1964 at the instance of the Official Liquidator and at the instance of a contributory the Court had approved of the terms and conditions of sale which provide for calling of sealed tenders. On December 24, 1964 the learned Judge realised the inefficacy of this course and decided to abandon the original procedure and put the properties to auction. But having made up his mind to resort to auction the learned Judge confined the auction to only two persons namely the previous tenderer and the fresh tenderer.The auction in question no doubt was conducted in a public place but it was not a public auction because it was not open to the general public but was confined to two named persons. Secondly it was not held after due publicity. It was held immediately after it was decided upon. It is, therefore, obvious that the sale in question was not a public sale which implies sale after giving notice to the public wherein every member of the public is at liberty to participate.No doubt, the device resorted to considerably raised the previous bid yet it was not an adequate price having regard to the market value of the property to which reference has already been made.The denial of opportunity to purchase the property by persons who would have taken part in the auction bid but for want of notice is a serious matter.In our opinion the learned Judge having decided on December 24, 1964 that the property should be put to auction should have directed auction by public sale instead of confining it to two persons alone. Since there was want of publicity and there was lack of opportunity to the public to take part in the auction the acceptance of the highest bid by the learned Judge was not a sound exercise ofalready pointed out the learned Company Judge having decided to put the property to auction went wrong in not holding the auction as a public auction after due publicity and this has resulted in prejudice to the Company and the creditors in that the auction did not fetch adequate price.The prejudice was inherent in the method adopted.The petition of Padam Chand Agarwal also suggests that want of publicity, had resulted in prejudice. In these circumstances the Company Judge ought not to have confirmed the bid of the appellant in the auction held on December 24, 1964.We are accordingly of opinion that the Division Bench was right in holding that the order of the Company Judge dated February 19, 1965 should be set aside and there should be fresh sale of the property either by calling sealed tenders or by auction in accordance with law.
| 1 | 2,860 | 983 |
### 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:
, it was pointed out that the condition of confirmation by the Court being a safeguard against the property being sold at an inadequate price, it will be not only proper but necessary that the Court in exercising the discretion which it undoubtedly has of accepting or refusing the highest bid at the auction held in pursuance of its orders, should see that the price fetched at the auction is an adequate price even though there is no suggestion of irregularity or fraud. It is well to bear in mind the other principle which is equally well settled namely that once the court comes to the conclusion that the price offered is adequate, no subsequent higher offer can constitute a valid ground for refusing confirmation of the sale or offer already received. (See the decision of the Madras High Court in Roshan and Co.s case, AIR 1940 Mad 42 ).7. In the present case the Division Bench has come to the conclusion that publicity was not as wide as originally proposed by the Commissioners in their affidavit. The publication was made in four dailies namely The Hindu, Indian Express, Hindustan Times and The Statesman. There was no publication in the Times of India. Further out of the four newspapers in which publication was made only in two there were two insertions and in the remaining two there was only one insertion. This was contrary to what the Commissioners have promised in their affidavit dated July 8, 1964. No doubt, other efforts were made for giving publicity but these efforts were not sufficient to attract more than one offer. When the case came for confirmation on December 24, 1964 there was an application by Babukhan that the property was of much higher value and that fresh offers must be invited again with wider publicity. There is also the affidavit of the State Government dated August 29, 1963 in which the value of the property was shown as Rs. 13,40,000/-. Besides, on that very day, one Gopaldas Darak had come before the Court with a higher offer showing his bona fides and earnestness by depositing more than one lakh of rupees. He came with the complaint that there was not sufficient publicity as to attract people from the north and that as soon as he came to know he gave his offer. In these circumstances the learned single Judge was right in expressing his reluctance to confirm the offer of Navalkha and Sons. He therefore decided to have an open bid as between the appellant and Darak in the court itself on that very day. The complaint of Padam Chand Agarwal is that the second step taken by the Single Judge of holding an auction without giving wide publicity was not justified in law.Rule 273 of the Companies (Court) Rules provides that all sales shall be made by public auction or by inviting sealed tenders or in such manner as the Judge may direct.It appears that on April 17, 1964 at the instance of the Official Liquidator and at the instance of a contributory the Court had approved of the terms and conditions of sale which provide for calling of sealed tenders. On December 24, 1964 the learned Judge realised the inefficacy of this course and decided to abandon the original procedure and put the properties to auction. But having made up his mind to resort to auction the learned Judge confined the auction to only two persons namely the previous tenderer and the fresh tenderer.The auction in question no doubt was conducted in a public place but it was not a public auction because it was not open to the general public but was confined to two named persons. Secondly it was not held after due publicity. It was held immediately after it was decided upon. It is, therefore, obvious that the sale in question was not a public sale which implies sale after giving notice to the public wherein every member of the public is at liberty to participate.No doubt, the device resorted to considerably raised the previous bid yet it was not an adequate price having regard to the market value of the property to which reference has already been made.The denial of opportunity to purchase the property by persons who would have taken part in the auction bid but for want of notice is a serious matter.In our opinion the learned Judge having decided on December 24, 1964 that the property should be put to auction should have directed auction by public sale instead of confining it to two persons alone. Since there was want of publicity and there was lack of opportunity to the public to take part in the auction the acceptance of the highest bid by the learned Judge was not a sound exercise of discretion. It is contended on behalf of the appellant that confirmation was discretionary with the court and the Division Bench ought not to have interfered with the discretion exercised by the Company Judge.It is true that the discretion exercised by the Judge ought not to be interfered with unless the Judge has gone wrong on principle.As already pointed out the learned Company Judge having decided to put the property to auction went wrong in not holding the auction as a public auction after due publicity and this has resulted in prejudice to the Company and the creditors in that the auction did not fetch adequate price.The prejudice was inherent in the method adopted.The petition of Padam Chand Agarwal also suggests that want of publicity, had resulted in prejudice. In these circumstances the Company Judge ought not to have confirmed the bid of the appellant in the auction held on December 24, 1964.We are accordingly of opinion that the Division Bench was right in holding that the order of the Company Judge dated February 19, 1965 should be set aside and there should be fresh sale of the property either by calling sealed tenders or by auction in accordance with law.
### Response:
1
### Explanation:
6. The principles which should govern confirmation of sales are well established.Where the acceptance of the offer by the Commissioners is subject to confirmation of the Court the offeror does not by mere acceptance get any vested right in the property so that he may demand automatic confirmation of his offer. The condition of confirmation by the Court operates as a safeguard against the property being sold at inadequate price whether or not it is a consequence of any irregularity or fraud in the conduct of the sale. In every case it is the duty of the Court to satisfy itself that having regard to the market value of the property the price offered is reasonable. Unless the Court is satisfied about the adequacy of the price the act of confirmation of the sale would not be a proper exercise of judicial discretion.In the present case the Division Bench has come to the conclusion that publicity was not as wide as originally proposed by the Commissioners in their affidavit. The publication was made in four dailies namely The Hindu, Indian Express, Hindustan Times and The Statesman. There was no publication in the Times of India. Further out of the four newspapers in which publication was made only in two there were two insertions and in the remaining two there was only one insertion. This was contrary to what the Commissioners have promised in their affidavit dated July 8, 1964. No doubt, other efforts were made for giving publicity but these efforts were not sufficient to attract more than one offer. When the case came for confirmation on December 24, 1964 there was an application by Babukhan that the property was of much higher value and that fresh offers must be invited again with wider publicity. There is also the affidavit of the State Government dated August 29, 1963 in which the value of the property was shown as Rs. 13,40,000/-. Besides, on that very day, one Gopaldas Darak had come before the Court with a higher offer showing his bona fides and earnestness by depositing more than one lakh of rupees. He came with the complaint that there was not sufficient publicity as to attract people from the north and that as soon as he came to know he gave his offer. In these circumstances the learned single Judge was right in expressing his reluctance to confirm the offer of Navalkha and Sons. He therefore decided to have an open bid as between the appellant and Darak in the court itself on that very day. The complaint of Padam Chand Agarwal is that the second step taken by the Single Judge of holding an auction without giving wide publicity was not justified in law.Rule 273 of the Companies (Court) Rules provides that all sales shall be made by public auction or by inviting sealed tenders or in such manner as the Judge may direct.It appears that on April 17, 1964 at the instance of the Official Liquidator and at the instance of a contributory the Court had approved of the terms and conditions of sale which provide for calling of sealed tenders. On December 24, 1964 the learned Judge realised the inefficacy of this course and decided to abandon the original procedure and put the properties to auction. But having made up his mind to resort to auction the learned Judge confined the auction to only two persons namely the previous tenderer and the fresh tenderer.The auction in question no doubt was conducted in a public place but it was not a public auction because it was not open to the general public but was confined to two named persons. Secondly it was not held after due publicity. It was held immediately after it was decided upon. It is, therefore, obvious that the sale in question was not a public sale which implies sale after giving notice to the public wherein every member of the public is at liberty to participate.No doubt, the device resorted to considerably raised the previous bid yet it was not an adequate price having regard to the market value of the property to which reference has already been made.The denial of opportunity to purchase the property by persons who would have taken part in the auction bid but for want of notice is a serious matter.In our opinion the learned Judge having decided on December 24, 1964 that the property should be put to auction should have directed auction by public sale instead of confining it to two persons alone. Since there was want of publicity and there was lack of opportunity to the public to take part in the auction the acceptance of the highest bid by the learned Judge was not a sound exercise ofalready pointed out the learned Company Judge having decided to put the property to auction went wrong in not holding the auction as a public auction after due publicity and this has resulted in prejudice to the Company and the creditors in that the auction did not fetch adequate price.The prejudice was inherent in the method adopted.The petition of Padam Chand Agarwal also suggests that want of publicity, had resulted in prejudice. In these circumstances the Company Judge ought not to have confirmed the bid of the appellant in the auction held on December 24, 1964.We are accordingly of opinion that the Division Bench was right in holding that the order of the Company Judge dated February 19, 1965 should be set aside and there should be fresh sale of the property either by calling sealed tenders or by auction in accordance with law.
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Commissioner Of Income-Tax, Madras Vs. Ajax Products Ltd. Through Its Liquidator
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him under S. 46 (1) of the Act. Under S. 24-B, the Income-tax Officer may proceed to assess the total income of the deceased person as if such legal representative was the assessee. It was argued that after the assessment was made on the legal representative, the fiction came to an end and thereafter, he remained a mere debtor to the department, and, therefore, S. 46 (1) could not be applied to him. Dealing with that argument, Hidyatullah, J., speaking for the Court said:"When a thing is deemed to be something else, it is to be treated as if it is that thing, though, in fact, it is not. .. .. . It is in this sense that the legal representative becomes an assessee by the fiction, and it is this fiction, which has to be fully worked out, without allowing the mind to boggle.The above decision is of no help to the appellant. There, the statute treated him as an assessee and as he made a default as in assessee, he became liable for the penalty under S. 46 (1). The statutory fiction was given full effect.20. This Court in Commr. of Income-tax Bombay City 1, v. Amarchand N. Shroff, (1963) 48 ITR 59 : (AIR 1963 SC 1448 ), rightly administered a caution that fictions should not be stretched beyond the purpose for which they were enacted. In that case, the question arose whether under S. 24B of the Act the Income-tax Officer could levy tax on receipts by the legal representative of the deceased person in the years of assessment succeeding the year of account being the previous year in which such person died. Under S. 24-B the legal personality of the deceased assessee was extended for the duration of the entire previous year in the course of which he died and, therefore, the income received by him before his death and that received by his heirs and legal representatives after his death but in that previous year became assessable in the relevant assessment year. The Court held that the section was enacted to bring to tax after the death, income received during his life time. In that context, Kapur, J. speaking for the Court observed at p. 66 (of ITR): (at p. 1452 of AIR) thus:"By section 24-B the legal representatives have, by fiction of law, become assessees as provided in that section but that fiction cannot be extended beyond the object for which it was enacted. As was observed by this Court in Bengal Immunity Co. Ltd. v. State of Bihar, (S) AIR 1955 SC 661 , legal fictions are only for a definite purpose and they are limited to the purpose for which they are created and should not be extended beyond that legitimate field. In the present case the fiction is limited to the cases provided in the three sub-sections of S. 24-B and cannot be extended further than the liability for the income received in the previous year."The fiction in the second proviso is a limited one. The surplus is deemed to be the profits of the previous year. As we have pointed out earlier, it adequately serves the purpose of the section. It was given a limited meaning under the earlier decisions. To sustain the argument of the Revenue, it has to be enlarged in its scope. Many words have to be read into it which are not there. We cannot accept this argument.21. It is said that the words previous year need not necessarily be an accounting year wedded to the assessment year and it can be given a different meaning if the context demands it. This Court in Dhandhania Kedia and Co. v. Commr. of Income-tax, (1959) 35 ITR 400 : (AIR 1959 SC 219 ), approved of the observations of Mahajan J. in Commr. of Income-tax v. K. Srinivasan, (1953) 23 ITR 87 : (AIR 1953 SC 113 ). The observations of Mahajan are to the following effect:"..... For purposes of the charging sections of the Act unless otherwise provided for it is co-related to a year of assessment immediately following it, but it is not necessarily wedded to an assessment year in all cases and it cannot be said that the expression previous year has no meaning unless it is used in relation to a financial year. In a certain context, it may well mean a completed accounting year immediately preceding the happening of a contingency."22. Be that as it may, in the present case in the context, as we have already indicated, there is no reason to give the expression a meaning different from that it bears under the definition.23. If the argument advanced on behalf of the Revenue were accepted it would lead to some anomalies. By the fiction, if the business must be deemed to be in existence during the previous year and that the buildings sold must be deemed to have been used for the business during that year the amendment was not necessary. If it existed there could not have been a cessation of it during the previous year. On that reasoning the judgment in Pursas case, (1954) 25 ITR 265 : (AIR 1954 SC 253 ), would have been the other way. If the argument was correct there would be no time limit for the assessment of the surplus. Whenever a building was sold, whatever might be the time lag, by fiction, the business, as well as the user of the building in that business would be in the previous year by the year of assessment. We cannot accept a contention yielding such a result unless it is so clearly expressed. Indeed, the expressed intention of the legislature is the other way. We, therefore hold that the amendment only removed one of the conditions for the eligibility of the said surplus to tax namely the cessation of the business and in other respects the construction put upon the proviso by the earlier decisions of this Court is still good law. I
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1[ds]23. If the argument advanced on behalf of the Revenue were accepted it would lead to some anomalies. By the fiction, if the business must be deemed to be in existence during the previous year and that the buildings sold must be deemed to have been used for the business during that year the amendment was not necessary. If it existed there could not have been a cessation of it during the previous year. On that reasoning the judgment in Pursas case, (1954) 25 ITR 265 : (AIR 1954 SC 253 ), would have been the other way. If the argument was correct there would be no time limit for the assessment of the surplus. Whenever a building was sold, whatever might be the time lag, by fiction, the business, as well as the user of the building in that business would be in the previous year by the year of assessment. We cannot accept a contention yielding such a result unless it is so clearly expressed. Indeed, the expressed intention of the legislature is the other way. We, therefore hold that the amendment only removed one of the conditions for the eligibility of the said surplus to tax namely the cessation of the business and in other respects the construction put upon the proviso by the earlier decisions of this Court is still goodwould at once be noticed that both the reasons given and the conclusion arrived at by the Tribunal were based on surmises. There is nothing on the record to disclose that the valuation certificate was issued in connection with the floatation of the company; nor is there any material to suggest that any particualar building was omitted from the estimate and that those omitted had any marketable value, at all. What is more, the estimate of the value given by the Tribunal was pure guess unrelated to the material plated before it. The High Court in dealing with this matterwas however no basis for the finding of the Tribunal, that the assessee should have made a profit of Rs. 1,25,000 by the sale of the building. The position was that the Tribunal did not reject the genuineness of the valuation made by the experts, and it had no material either for the estimates it purported to make, the estimate either of the sale value or of the profits realised by the sale of the buildings.As the finding of the Tribunal was not based upon any evidence, the High Court was certainly entitled to go behind that finding and answer the question referred to it in the negative.It is, therefore, clear that if the amendment was not there, the present case is directly covered by the said two decisions the plant and machinery were not used during the accounting year and were sold only after the cessation of the business.To put it in other words, the subject is not to be taxed unless the charging provision clearly imposes the obligation. Equally important the rule of construction is that if the words of a statute are precise and unambiguous, they must be accepted as declaring the express intentions of the legislature. Giving a close scrutiny to the second proviso, it will be clear that by giving the natural meaning to every word used therein, it clearly fits in within the scheme of the entire section. The key expressions in the proviso are (1) such building, (2) whether during the continuance of the business or after the cessation thereof and (3) "deemed to be the profits of the previous year" The words such building have already been given an authoritative interpretation by this Court in the aforesaid two decisions.The words "whether during the continuance of the business or after the cessation thereof" were not present in the unamended proviso. In the two decisions cited earlier, in the absence of such words, this Court held that to attract the said proviso the machinery shall have been sold before the business was closed down. This clause omits that condition for the eligibility of thethe present case, the previous year is the calendar year preceding the assessment year. Deemed profits must, therefore, relate to the calendar year preceding the assessment year. By giving the natural meaning to every expression used in the proviso, we reach the result namely that the surplus mentioned in the said proviso is not exigible to tax unless the assessee did business during the accounting year preceding the assessment year and unless such buildings or machinery yielding surplus were used for the business in the said year or at any rate part of the year, though they were sold after the cessation of the business. To illustrate an assessee did business during some part of the accounting year 1955 but closed it in October of that year. He used the machinery during some part of the year for the business. He sold it in December. The price realised yielded a surplus within the meaning of the proviso. During the assessment yearthe said surplus could be brought into charge notwithstanding the fact that the machinery was sold after the cessation of the business. Before the amendment, the said surplus could not be taxed as the sale was subsequent to the cessation of the business. By giving the natural meaning to every expression in the proviso, the proviso serves the purpose intended by themay be cases in which the language of the statute may be so clear that a proviso may be construed as a substantive clause. But whether a proviso is construed as restricting the main provision or as a substantive clause, it cannot be divorced from the provision to which it stands as a proviso. It must be construed harmoniously with the main enactment. So construed, we have already stated earlier the result that flows from such athe legal personality of the deceased assessee was extended for the duration of the entire previous year in the course of which he died and, therefore, the income received by him before his death and that received by his heirs and legal representatives after his death but in that previous year became assessable in the relevant assessment year. The Court held that the section was enacted to bring to tax after the death, income received during his life time. In that context, Kapur, J. speaking for the Court observed at p. 66 (of ITR): (at p. 1452 of AIR)the legal representatives have, by fiction of law, become assessees as provided in that section but that fiction cannot be extended beyond the object for which it was enacted. As was observed by this Court in Bengal Immunity Co. Ltd. v. State of Bihar, (S) AIR 1955 SC 661 , legal fictions are only for a definite purpose and they are limited to the purpose for which they are created and should not be extended beyond that legitimate field. In the present case the fiction is limited to the cases provided in the threeB and cannot be extended further than the liability for the income received in the previousfiction in the second proviso is a limited one. The surplus is deemed to be the profits of the previous year. As we have pointed out earlier, it adequately serves the purpose of the section. It was given a limited meaning under the earlier decisions. To sustain the argument of the Revenue, it has to be enlarged in its scope. Many words have to be read into it which are not there. We cannot accept this argument.Be that as it may, in the present case in the context, as we have already indicated, there is no reason to give the expression a meaning different from that it bears under the definition.
| 1 | 4,989 | 1,406 |
### 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:
him under S. 46 (1) of the Act. Under S. 24-B, the Income-tax Officer may proceed to assess the total income of the deceased person as if such legal representative was the assessee. It was argued that after the assessment was made on the legal representative, the fiction came to an end and thereafter, he remained a mere debtor to the department, and, therefore, S. 46 (1) could not be applied to him. Dealing with that argument, Hidyatullah, J., speaking for the Court said:"When a thing is deemed to be something else, it is to be treated as if it is that thing, though, in fact, it is not. .. .. . It is in this sense that the legal representative becomes an assessee by the fiction, and it is this fiction, which has to be fully worked out, without allowing the mind to boggle.The above decision is of no help to the appellant. There, the statute treated him as an assessee and as he made a default as in assessee, he became liable for the penalty under S. 46 (1). The statutory fiction was given full effect.20. This Court in Commr. of Income-tax Bombay City 1, v. Amarchand N. Shroff, (1963) 48 ITR 59 : (AIR 1963 SC 1448 ), rightly administered a caution that fictions should not be stretched beyond the purpose for which they were enacted. In that case, the question arose whether under S. 24B of the Act the Income-tax Officer could levy tax on receipts by the legal representative of the deceased person in the years of assessment succeeding the year of account being the previous year in which such person died. Under S. 24-B the legal personality of the deceased assessee was extended for the duration of the entire previous year in the course of which he died and, therefore, the income received by him before his death and that received by his heirs and legal representatives after his death but in that previous year became assessable in the relevant assessment year. The Court held that the section was enacted to bring to tax after the death, income received during his life time. In that context, Kapur, J. speaking for the Court observed at p. 66 (of ITR): (at p. 1452 of AIR) thus:"By section 24-B the legal representatives have, by fiction of law, become assessees as provided in that section but that fiction cannot be extended beyond the object for which it was enacted. As was observed by this Court in Bengal Immunity Co. Ltd. v. State of Bihar, (S) AIR 1955 SC 661 , legal fictions are only for a definite purpose and they are limited to the purpose for which they are created and should not be extended beyond that legitimate field. In the present case the fiction is limited to the cases provided in the three sub-sections of S. 24-B and cannot be extended further than the liability for the income received in the previous year."The fiction in the second proviso is a limited one. The surplus is deemed to be the profits of the previous year. As we have pointed out earlier, it adequately serves the purpose of the section. It was given a limited meaning under the earlier decisions. To sustain the argument of the Revenue, it has to be enlarged in its scope. Many words have to be read into it which are not there. We cannot accept this argument.21. It is said that the words previous year need not necessarily be an accounting year wedded to the assessment year and it can be given a different meaning if the context demands it. This Court in Dhandhania Kedia and Co. v. Commr. of Income-tax, (1959) 35 ITR 400 : (AIR 1959 SC 219 ), approved of the observations of Mahajan J. in Commr. of Income-tax v. K. Srinivasan, (1953) 23 ITR 87 : (AIR 1953 SC 113 ). The observations of Mahajan are to the following effect:"..... For purposes of the charging sections of the Act unless otherwise provided for it is co-related to a year of assessment immediately following it, but it is not necessarily wedded to an assessment year in all cases and it cannot be said that the expression previous year has no meaning unless it is used in relation to a financial year. In a certain context, it may well mean a completed accounting year immediately preceding the happening of a contingency."22. Be that as it may, in the present case in the context, as we have already indicated, there is no reason to give the expression a meaning different from that it bears under the definition.23. If the argument advanced on behalf of the Revenue were accepted it would lead to some anomalies. By the fiction, if the business must be deemed to be in existence during the previous year and that the buildings sold must be deemed to have been used for the business during that year the amendment was not necessary. If it existed there could not have been a cessation of it during the previous year. On that reasoning the judgment in Pursas case, (1954) 25 ITR 265 : (AIR 1954 SC 253 ), would have been the other way. If the argument was correct there would be no time limit for the assessment of the surplus. Whenever a building was sold, whatever might be the time lag, by fiction, the business, as well as the user of the building in that business would be in the previous year by the year of assessment. We cannot accept a contention yielding such a result unless it is so clearly expressed. Indeed, the expressed intention of the legislature is the other way. We, therefore hold that the amendment only removed one of the conditions for the eligibility of the said surplus to tax namely the cessation of the business and in other respects the construction put upon the proviso by the earlier decisions of this Court is still good law. I
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omitted had any marketable value, at all. What is more, the estimate of the value given by the Tribunal was pure guess unrelated to the material plated before it. The High Court in dealing with this matterwas however no basis for the finding of the Tribunal, that the assessee should have made a profit of Rs. 1,25,000 by the sale of the building. The position was that the Tribunal did not reject the genuineness of the valuation made by the experts, and it had no material either for the estimates it purported to make, the estimate either of the sale value or of the profits realised by the sale of the buildings.As the finding of the Tribunal was not based upon any evidence, the High Court was certainly entitled to go behind that finding and answer the question referred to it in the negative.It is, therefore, clear that if the amendment was not there, the present case is directly covered by the said two decisions the plant and machinery were not used during the accounting year and were sold only after the cessation of the business.To put it in other words, the subject is not to be taxed unless the charging provision clearly imposes the obligation. Equally important the rule of construction is that if the words of a statute are precise and unambiguous, they must be accepted as declaring the express intentions of the legislature. Giving a close scrutiny to the second proviso, it will be clear that by giving the natural meaning to every word used therein, it clearly fits in within the scheme of the entire section. The key expressions in the proviso are (1) such building, (2) whether during the continuance of the business or after the cessation thereof and (3) "deemed to be the profits of the previous year" The words such building have already been given an authoritative interpretation by this Court in the aforesaid two decisions.The words "whether during the continuance of the business or after the cessation thereof" were not present in the unamended proviso. In the two decisions cited earlier, in the absence of such words, this Court held that to attract the said proviso the machinery shall have been sold before the business was closed down. This clause omits that condition for the eligibility of thethe present case, the previous year is the calendar year preceding the assessment year. Deemed profits must, therefore, relate to the calendar year preceding the assessment year. By giving the natural meaning to every expression used in the proviso, we reach the result namely that the surplus mentioned in the said proviso is not exigible to tax unless the assessee did business during the accounting year preceding the assessment year and unless such buildings or machinery yielding surplus were used for the business in the said year or at any rate part of the year, though they were sold after the cessation of the business. To illustrate an assessee did business during some part of the accounting year 1955 but closed it in October of that year. He used the machinery during some part of the year for the business. He sold it in December. The price realised yielded a surplus within the meaning of the proviso. During the assessment yearthe said surplus could be brought into charge notwithstanding the fact that the machinery was sold after the cessation of the business. Before the amendment, the said surplus could not be taxed as the sale was subsequent to the cessation of the business. By giving the natural meaning to every expression in the proviso, the proviso serves the purpose intended by themay be cases in which the language of the statute may be so clear that a proviso may be construed as a substantive clause. But whether a proviso is construed as restricting the main provision or as a substantive clause, it cannot be divorced from the provision to which it stands as a proviso. It must be construed harmoniously with the main enactment. So construed, we have already stated earlier the result that flows from such athe legal personality of the deceased assessee was extended for the duration of the entire previous year in the course of which he died and, therefore, the income received by him before his death and that received by his heirs and legal representatives after his death but in that previous year became assessable in the relevant assessment year. The Court held that the section was enacted to bring to tax after the death, income received during his life time. In that context, Kapur, J. speaking for the Court observed at p. 66 (of ITR): (at p. 1452 of AIR)the legal representatives have, by fiction of law, become assessees as provided in that section but that fiction cannot be extended beyond the object for which it was enacted. As was observed by this Court in Bengal Immunity Co. Ltd. v. State of Bihar, (S) AIR 1955 SC 661 , legal fictions are only for a definite purpose and they are limited to the purpose for which they are created and should not be extended beyond that legitimate field. In the present case the fiction is limited to the cases provided in the threeB and cannot be extended further than the liability for the income received in the previousfiction in the second proviso is a limited one. The surplus is deemed to be the profits of the previous year. As we have pointed out earlier, it adequately serves the purpose of the section. It was given a limited meaning under the earlier decisions. To sustain the argument of the Revenue, it has to be enlarged in its scope. Many words have to be read into it which are not there. We cannot accept this argument.Be that as it may, in the present case in the context, as we have already indicated, there is no reason to give the expression a meaning different from that it bears under the definition.
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Jagdish Prasad Saxena Vs. State Of Madhya Bharat
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enquiry against him after the charge-sheet was supplied to him. In this connection it is necessary to remember that the previous enquiry was not directed against the appellant as such, and he was certainly not in the position of an accused in the said enquiry. In fact, as we have already indicated, the result of the said enquiry was that the appellant was absolved from any complicity in the commission of the offence, and the only criticism made against him was that he was slack in his supervision, that is why he was transferred. In such a case, even if the appellant had made some statements which amounted to admission it is open to doubt whether he could be removed from service on the strength of the said alleged admissions without holding a formal enquiry as required by the rules. But apart from this consideration, if the statements made by the appellant do not amount to a clear or unambiguous admission of his guilt, failure to hold a formal enquiry would certainly constitute a serious infirmity in the order of dismissal passed against him. Under Art. 311(2) he was entitled to have a reasonable opportunity of meeting the charge framed against him, and in the present case, before the show-cause notice was served on him he has had no opportunity at all to meet the charge. After the charge-sheet was supplied to him he did not get an opportunity to cross-examine Kethulekar and others. He was not given a copy of the report made by the enquiry officers in the said enquiries. He could not offer his explanation as to any of the points made against him; and it appears that from the evidence recorded in the previous enquiries as a result of which Kethulekar was suspended an inference was drawn against the appellant and show-cause notice was served on him. In our opinion, the appellant is justified in contending that in the circumstances of this case he has had no opportunity of showing cause at all, and so the requirement of Art. 311(2) is not satisfied. 12. The two facts admitted by the appellant do not necessarily or inevitably lead to the conclusion that he was guilty of the offence with which he was charged; besides, if his statements are used against him all his statements must be considered as a whole; and thus considered there is no admission of guilt at all. The essential part of the finding against him is that he was present at the time when liquor was transferred to the contractor; and his presence cannot be reasonably inferred from the facts admitted by him. Even as to the delivery of the key to Narona no rule has been produced in this case which positively prohibited the delivery of such a key even in an emergency. Indeed the report made by the Superintendent on July 13, 1951, shows that as a prudent man the appellant should not have given the key to Narona. The appellant was told that in future "the key should be given only to reliable persons in case of need". This admonition would show that in case of need it was open to the appellant to give the key to a reliable person, and that must necessarily mean that there was no rule which absolutely prohibited the delivery of the key to any person even in case of need. Therefore, the admission made by the appellant that he gave the key to Narona cannot necessarily lead to the conclusion that he was in league with Narona or Kethulekar. 13. The order passed by the Minister shows that he took into account the alleged interpolations in the books kept by the appellant as well as the fact that Kethulekar and the contractor saw the appellant the next morning. Now it is clear that so far as these two facts are concerned the appellant was given no opportunity to cross-examine Kethulekar and the contractor and to show that their story was untrue; nor was he given an opportunity to substantiate his explanation about the alleged interpolations in the books. The Minister may have thought that the facts to which his attention was invited indicated that the appellant must have been present at the warehouse when the offence took place; but it is of the utmost importance that in taking disciplinary action against a public servant a proper departmental enquiry must be held against him after supplying him with a charge-sheet, and he must be allowed a reasonable opportunity to meet the allegations contained in the charge-sheet. In the present case preliminary enquiries of a general type were held and they ended in a finding against Kethulekar. The reports did not show that the appellant was guilty of the offence for which he was ultimately dismissed from service. The delay made in giving the appellant the chargesheet as well as in communicating to him the final order of dismissal shows that the authorities did not think that time was the essence of the matter, and so there was hardly any justification for not holding a formal and proper enquiry after the appellant was given a chargesheet on October 17, 1951.In our opinion, therefore, the High Court was in error in coming to the conclusion that no prejudice had been caused to the appellant as a result of the respondents failure to hold an enquiry against him after supplying him with a chargesheet. The departmental enquiry is not an empty formality; it is a serious proceeding intended to give the officer concerned a chance to meet the charge and to prove his innocence. In the absence of any such enquiry it would not be fair to strain facts against the appellant and to hold that in view of the admissions made by him the enquiry would have served no useful purpose. That is a matter of speculation which is wholly out of place in dealing with cases of orders passed against public servants terminating their services.
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1[ds]13. The order passed by the Minister shows that he took into account the alleged interpolations in the books kept by the appellant as well as the fact that Kethulekar and the contractor saw the appellant the next morning. Now it is clear that so far as these two facts are concerned the appellant was given no opportunity to cross-examine Kethulekar and the contractor and to show that their story was untrue; nor was he given an opportunity to substantiate his explanation about the alleged interpolations in the books. The Minister may have thought that the facts to which his attention was invited indicated that the appellant must have been present at the warehouse when the offence took place; but it is of the utmost importance that in taking disciplinary action against a public servant a proper departmental enquiry must be held against him after supplying him with a charge-sheet, and he must be allowed a reasonable opportunity to meet the allegations contained in the charge-sheet. In the present case preliminary enquiries of a general type were held and they ended in a finding against Kethulekar. The reports did not show that the appellant was guilty of the offence for which he was ultimately dismissed from service. The delay made in giving the appellant the chargesheet as well as in communicating to him the final order of dismissal shows that the authorities did not think that time was the essence of the matter, and so there was hardly any justification for not holding a formal and proper enquiry after the appellant was given a chargesheet on October 17, 1951.In our opinion, therefore, the High Court was in error in coming to the conclusion that no prejudice had been caused to the appellant as a result of the respondents failure to hold an enquiry against him after supplying him with a chargesheet. The departmental enquiry is not an empty formality; it is a serious proceeding intended to give the officer concerned a chance to meet the charge and to prove his innocence. In the absence of any such enquiry it would not be fair to strain facts against the appellant and to hold that in view of the admissions made by him the enquiry would have served no useful purpose. That is a matter of speculation which is wholly out of place in dealing with cases of orders passed against public servants terminating their services12. The two facts admitted by the appellant do not necessarily or inevitably lead to the conclusion that he was guilty of the offence with which he was charged; besides, if his statements are used against him all his statements must be considered as a whole; and thus considered there is no admission of guilt at all. The essential part of the finding against him is that he was present at the time when liquor was transferred to the contractor; and his presence cannot be reasonably inferred from the facts admitted by him. Even as to the delivery of the key to Narona no rule has been produced in this case which positively prohibited the delivery of such a key even in an emergency. Indeed the report made by the Superintendent on July 13, 1951, shows that as a prudent man the appellant should not have given the key to Narona. The appellant was told that in future "the key should be given only to reliable persons in case of need". This admonition would show that in case of need it was open to the appellant to give the key to a reliable person, and that must necessarily mean that there was no rule which absolutely prohibited the delivery of the key to any person even in case of need. Therefore, the admission made by the appellant that he gave the key to Narona cannot necessarily lead to the conclusion that he was in league with Narona or Kethulekar11. It is true that the appellant specifically admitted during the course of the previous enquiry that illegal liquor had been delivered to the contractor, and that he had given the key of the receiver to Narona. It is on the strength of those admissions that the High Court took the view that the appellant had substantially admitted his guilt and so there was really no need for holding a formal enquiry against him after the charge-sheet was supplied to him. In this connection it is necessary to remember that the previous enquiry was not directed against the appellant as such, and he was certainly not in the position of an accused in the said enquiry. In fact, as we have already indicated, the result of the said enquiry was that the appellant was absolved from any complicity in the commission of the offence, and the only criticism made against him was that he was slack in his supervision, that is why he was transferred. In such a case, even if the appellant had made some statements which amounted to admission it is open to doubt whether he could be removed from service on the strength of the said alleged admissions without holding a formal enquiry as required by the rules. But apart from this consideration, if the statements made by the appellant do not amount to a clear or unambiguous admission of his guilt, failure to hold a formal enquiry would certainly constitute a serious infirmity in the order of dismissal passed against him. Under Art. 311(2) he was entitled to have a reasonable opportunity of meeting the charge framed against him, and in the present case, before the show-cause notice was served on him he has had no opportunity at all to meet the charge. After the charge-sheet was supplied to him he did not get an opportunity to cross-examine Kethulekar and others. He was not given a copy of the report made by the enquiry officers in the said enquiries. He could not offer his explanation as to any of the points made against him; and it appears that from the evidence recorded in the previous enquiries as a result of which Kethulekar was suspended an inference was drawn against the appellant and show-cause notice was served on him. In our opinion, the appellant is justified in contending that in the circumstances of this case he has had no opportunity of showing cause at all, and so the requirement of Art. 311(2) is not satisfied.
| 1 | 3,141 | 1,143 |
### 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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enquiry against him after the charge-sheet was supplied to him. In this connection it is necessary to remember that the previous enquiry was not directed against the appellant as such, and he was certainly not in the position of an accused in the said enquiry. In fact, as we have already indicated, the result of the said enquiry was that the appellant was absolved from any complicity in the commission of the offence, and the only criticism made against him was that he was slack in his supervision, that is why he was transferred. In such a case, even if the appellant had made some statements which amounted to admission it is open to doubt whether he could be removed from service on the strength of the said alleged admissions without holding a formal enquiry as required by the rules. But apart from this consideration, if the statements made by the appellant do not amount to a clear or unambiguous admission of his guilt, failure to hold a formal enquiry would certainly constitute a serious infirmity in the order of dismissal passed against him. Under Art. 311(2) he was entitled to have a reasonable opportunity of meeting the charge framed against him, and in the present case, before the show-cause notice was served on him he has had no opportunity at all to meet the charge. After the charge-sheet was supplied to him he did not get an opportunity to cross-examine Kethulekar and others. He was not given a copy of the report made by the enquiry officers in the said enquiries. He could not offer his explanation as to any of the points made against him; and it appears that from the evidence recorded in the previous enquiries as a result of which Kethulekar was suspended an inference was drawn against the appellant and show-cause notice was served on him. In our opinion, the appellant is justified in contending that in the circumstances of this case he has had no opportunity of showing cause at all, and so the requirement of Art. 311(2) is not satisfied. 12. The two facts admitted by the appellant do not necessarily or inevitably lead to the conclusion that he was guilty of the offence with which he was charged; besides, if his statements are used against him all his statements must be considered as a whole; and thus considered there is no admission of guilt at all. The essential part of the finding against him is that he was present at the time when liquor was transferred to the contractor; and his presence cannot be reasonably inferred from the facts admitted by him. Even as to the delivery of the key to Narona no rule has been produced in this case which positively prohibited the delivery of such a key even in an emergency. Indeed the report made by the Superintendent on July 13, 1951, shows that as a prudent man the appellant should not have given the key to Narona. The appellant was told that in future "the key should be given only to reliable persons in case of need". This admonition would show that in case of need it was open to the appellant to give the key to a reliable person, and that must necessarily mean that there was no rule which absolutely prohibited the delivery of the key to any person even in case of need. Therefore, the admission made by the appellant that he gave the key to Narona cannot necessarily lead to the conclusion that he was in league with Narona or Kethulekar. 13. The order passed by the Minister shows that he took into account the alleged interpolations in the books kept by the appellant as well as the fact that Kethulekar and the contractor saw the appellant the next morning. Now it is clear that so far as these two facts are concerned the appellant was given no opportunity to cross-examine Kethulekar and the contractor and to show that their story was untrue; nor was he given an opportunity to substantiate his explanation about the alleged interpolations in the books. The Minister may have thought that the facts to which his attention was invited indicated that the appellant must have been present at the warehouse when the offence took place; but it is of the utmost importance that in taking disciplinary action against a public servant a proper departmental enquiry must be held against him after supplying him with a charge-sheet, and he must be allowed a reasonable opportunity to meet the allegations contained in the charge-sheet. In the present case preliminary enquiries of a general type were held and they ended in a finding against Kethulekar. The reports did not show that the appellant was guilty of the offence for which he was ultimately dismissed from service. The delay made in giving the appellant the chargesheet as well as in communicating to him the final order of dismissal shows that the authorities did not think that time was the essence of the matter, and so there was hardly any justification for not holding a formal and proper enquiry after the appellant was given a chargesheet on October 17, 1951.In our opinion, therefore, the High Court was in error in coming to the conclusion that no prejudice had been caused to the appellant as a result of the respondents failure to hold an enquiry against him after supplying him with a chargesheet. The departmental enquiry is not an empty formality; it is a serious proceeding intended to give the officer concerned a chance to meet the charge and to prove his innocence. In the absence of any such enquiry it would not be fair to strain facts against the appellant and to hold that in view of the admissions made by him the enquiry would have served no useful purpose. That is a matter of speculation which is wholly out of place in dealing with cases of orders passed against public servants terminating their services.
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story was untrue; nor was he given an opportunity to substantiate his explanation about the alleged interpolations in the books. The Minister may have thought that the facts to which his attention was invited indicated that the appellant must have been present at the warehouse when the offence took place; but it is of the utmost importance that in taking disciplinary action against a public servant a proper departmental enquiry must be held against him after supplying him with a charge-sheet, and he must be allowed a reasonable opportunity to meet the allegations contained in the charge-sheet. In the present case preliminary enquiries of a general type were held and they ended in a finding against Kethulekar. The reports did not show that the appellant was guilty of the offence for which he was ultimately dismissed from service. The delay made in giving the appellant the chargesheet as well as in communicating to him the final order of dismissal shows that the authorities did not think that time was the essence of the matter, and so there was hardly any justification for not holding a formal and proper enquiry after the appellant was given a chargesheet on October 17, 1951.In our opinion, therefore, the High Court was in error in coming to the conclusion that no prejudice had been caused to the appellant as a result of the respondents failure to hold an enquiry against him after supplying him with a chargesheet. The departmental enquiry is not an empty formality; it is a serious proceeding intended to give the officer concerned a chance to meet the charge and to prove his innocence. In the absence of any such enquiry it would not be fair to strain facts against the appellant and to hold that in view of the admissions made by him the enquiry would have served no useful purpose. That is a matter of speculation which is wholly out of place in dealing with cases of orders passed against public servants terminating their services12. The two facts admitted by the appellant do not necessarily or inevitably lead to the conclusion that he was guilty of the offence with which he was charged; besides, if his statements are used against him all his statements must be considered as a whole; and thus considered there is no admission of guilt at all. The essential part of the finding against him is that he was present at the time when liquor was transferred to the contractor; and his presence cannot be reasonably inferred from the facts admitted by him. Even as to the delivery of the key to Narona no rule has been produced in this case which positively prohibited the delivery of such a key even in an emergency. Indeed the report made by the Superintendent on July 13, 1951, shows that as a prudent man the appellant should not have given the key to Narona. The appellant was told that in future "the key should be given only to reliable persons in case of need". This admonition would show that in case of need it was open to the appellant to give the key to a reliable person, and that must necessarily mean that there was no rule which absolutely prohibited the delivery of the key to any person even in case of need. Therefore, the admission made by the appellant that he gave the key to Narona cannot necessarily lead to the conclusion that he was in league with Narona or Kethulekar11. It is true that the appellant specifically admitted during the course of the previous enquiry that illegal liquor had been delivered to the contractor, and that he had given the key of the receiver to Narona. It is on the strength of those admissions that the High Court took the view that the appellant had substantially admitted his guilt and so there was really no need for holding a formal enquiry against him after the charge-sheet was supplied to him. In this connection it is necessary to remember that the previous enquiry was not directed against the appellant as such, and he was certainly not in the position of an accused in the said enquiry. In fact, as we have already indicated, the result of the said enquiry was that the appellant was absolved from any complicity in the commission of the offence, and the only criticism made against him was that he was slack in his supervision, that is why he was transferred. In such a case, even if the appellant had made some statements which amounted to admission it is open to doubt whether he could be removed from service on the strength of the said alleged admissions without holding a formal enquiry as required by the rules. But apart from this consideration, if the statements made by the appellant do not amount to a clear or unambiguous admission of his guilt, failure to hold a formal enquiry would certainly constitute a serious infirmity in the order of dismissal passed against him. Under Art. 311(2) he was entitled to have a reasonable opportunity of meeting the charge framed against him, and in the present case, before the show-cause notice was served on him he has had no opportunity at all to meet the charge. After the charge-sheet was supplied to him he did not get an opportunity to cross-examine Kethulekar and others. He was not given a copy of the report made by the enquiry officers in the said enquiries. He could not offer his explanation as to any of the points made against him; and it appears that from the evidence recorded in the previous enquiries as a result of which Kethulekar was suspended an inference was drawn against the appellant and show-cause notice was served on him. In our opinion, the appellant is justified in contending that in the circumstances of this case he has had no opportunity of showing cause at all, and so the requirement of Art. 311(2) is not satisfied.
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SHRIKANT Vs. NARAYAN SINGH (DEAD) THR. LRS. & ORS
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BANUMATHI, J.:1. This appeal arises out of judgment and order of the Madhya Pradesh High Court, Indore Bench, in Second Appeal NO.303 of 1998 dated 29th September, 2005 and also review petition, M.C.C. NO.1258 of 2005 dated 27th January, 2006, in and by which the High Court has held that the quit notice issued by the appellant-landlord was defective and hence the appellant is not entitled to seek for eviction.2. We have heard learned counsel for the parties and also perused the impugned judgment and the evidence and the materials on record.3. The appellant herein has filed a suit for eviction and recovery of rent of Rs.2700/- per month. The Trial Court decreed the suit and ordered eviction of the respondent(s). The Trial Court recorded the finding that there is landlord-tenant relationship and also held that the quit notice was a valid notice. The Trial court further directed the respondent to pay mesne profits/rent for a period of three years prior to filing of the suit.4. Being aggrieved by the judgment passed by the Trial Court, the respondent filed appeal before the First Appellate Court. The First Appellate Court allowed the appeal filed by the respondent(s) holding that the appellant has not proved the landlord-tenant relationship and that the first respondent is the tenant under the appellant. Be it noted that the validity of the termination notice was, however, upheld by the First Appellate Court.5. Being aggrieved by the judgment of the First Appellate Court, the appellant preferred second appeal before the High Court. In the second appeal the High Court has formulated/framed the following substantial questions of law which read as under :"1. Whether the plaintiff appellant is entitled to a decree for possession of the suit premises on the basis of admission of title of the plaintiff by the defendant in the light of the principle laid down by Honble Supreme Court of India in the judgment reported in 1966 SC 735 ?2. Whether the first appellate court erred in rejecting the document Exhibit P-1 evidencing the tenancy of respondent No.1 Narayan Singh without any legal basis?" 6. While deciding the second appeal, it appears that the High Court has not answered the substantial questions of law framed by the High Court; but the High Court has examined the question as to the validity or otherwise of the quit notice (Exhibit P- 2) dated 5th August, 1976 sent by the appellant to the respondent(s) and the High Court observed that the quit notice was defective. The validity of the quit notice (Exhibit P-2) was not an issue before the High Court nor any question of law was framed on the same. In our considered view, the High Court ought to have examined the substantial questions of law framed by it and answered the same in accordance with law. In such view of the matter the impugned order is not sustainable and the matter has to be remitted back to the High Court.
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1[ds]6. While deciding the second appeal, it appears that the High Court has not answered the substantial questions of law framed by the High Court; but the High Court has examined the question as to the validity or otherwise of the quit notice (Exhibit P- 2) dated 5th August, 1976 sent by the appellant to the respondent(s) and the High Court observed that the quit notice was defective. The validity of the quit notice (Exhibit P-2) was not an issue before the High Court nor any question of law was framed on the same. In our considered view, the High Court ought to have examined the substantial questions of law framed by it and answered the same in accordance with law. In such view of the matter the impugned order is not sustainable and the matter has to be remitted back to the High Court.
| 1 | 546 | 165 |
### 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:
BANUMATHI, J.:1. This appeal arises out of judgment and order of the Madhya Pradesh High Court, Indore Bench, in Second Appeal NO.303 of 1998 dated 29th September, 2005 and also review petition, M.C.C. NO.1258 of 2005 dated 27th January, 2006, in and by which the High Court has held that the quit notice issued by the appellant-landlord was defective and hence the appellant is not entitled to seek for eviction.2. We have heard learned counsel for the parties and also perused the impugned judgment and the evidence and the materials on record.3. The appellant herein has filed a suit for eviction and recovery of rent of Rs.2700/- per month. The Trial Court decreed the suit and ordered eviction of the respondent(s). The Trial Court recorded the finding that there is landlord-tenant relationship and also held that the quit notice was a valid notice. The Trial court further directed the respondent to pay mesne profits/rent for a period of three years prior to filing of the suit.4. Being aggrieved by the judgment passed by the Trial Court, the respondent filed appeal before the First Appellate Court. The First Appellate Court allowed the appeal filed by the respondent(s) holding that the appellant has not proved the landlord-tenant relationship and that the first respondent is the tenant under the appellant. Be it noted that the validity of the termination notice was, however, upheld by the First Appellate Court.5. Being aggrieved by the judgment of the First Appellate Court, the appellant preferred second appeal before the High Court. In the second appeal the High Court has formulated/framed the following substantial questions of law which read as under :"1. Whether the plaintiff appellant is entitled to a decree for possession of the suit premises on the basis of admission of title of the plaintiff by the defendant in the light of the principle laid down by Honble Supreme Court of India in the judgment reported in 1966 SC 735 ?2. Whether the first appellate court erred in rejecting the document Exhibit P-1 evidencing the tenancy of respondent No.1 Narayan Singh without any legal basis?" 6. While deciding the second appeal, it appears that the High Court has not answered the substantial questions of law framed by the High Court; but the High Court has examined the question as to the validity or otherwise of the quit notice (Exhibit P- 2) dated 5th August, 1976 sent by the appellant to the respondent(s) and the High Court observed that the quit notice was defective. The validity of the quit notice (Exhibit P-2) was not an issue before the High Court nor any question of law was framed on the same. In our considered view, the High Court ought to have examined the substantial questions of law framed by it and answered the same in accordance with law. In such view of the matter the impugned order is not sustainable and the matter has to be remitted back to the High Court.
### Response:
1
### Explanation:
6. While deciding the second appeal, it appears that the High Court has not answered the substantial questions of law framed by the High Court; but the High Court has examined the question as to the validity or otherwise of the quit notice (Exhibit P- 2) dated 5th August, 1976 sent by the appellant to the respondent(s) and the High Court observed that the quit notice was defective. The validity of the quit notice (Exhibit P-2) was not an issue before the High Court nor any question of law was framed on the same. In our considered view, the High Court ought to have examined the substantial questions of law framed by it and answered the same in accordance with law. In such view of the matter the impugned order is not sustainable and the matter has to be remitted back to the High Court.
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Gopal Singh And Others Vs. Ujagar Singh And Others
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have concluded the matter. But as the point was conceded in all three Courts it was not necessary for the defendants to fall back on the previous decisions. It must therefore be accepted here that the whole of the land in dispute was non-ancestral.That brings us to the question of heirship. Paragraph 23(2) of Rattigans Digest to Customary Law says that -"In regard to the acquired property of her father, the daughter is preferred to the collaterals."5. That is not disputed but what the plaintiffs contend is that she only succeeds as a limited heir and that after her the reversion will go to the fathers heirs in the usual way. But that is not the Punjab custom among the tribe to which the parties belong, namely agricultural Jats. Rattigan quotes the following passage from page 61 of Roe and Rattigans Tribal Law of the Punjab at page 411 of the 13th edition of his Digest :"Where a succession of a married daughter is allowed, the general principle is that the she succeeds not as an ordinary heir, but merely as the means of passing on the property to another male, whose descent from her father in the female line is allowed under exceptional circumstances to count as if it were descent in the male line. She will indeed continue to hold the land in her own name, even after the birth of sons and their attaining majority, for her won life but she has no more power over it than a widow would have. If she has sons, the estate will of course descend to them and their lineal male issue, in the usual way. But if she has no sons, or if their male issue fail, the land will revert, except in some special instances where her husband is allowed to hold for his life, to her fathers agnates, just as it would have done if no exception to the general rule of agnatic succession had ever been in her favour."6. This is supported by at least two decisions from the Punjab. In Lehna v. Mst. Thakri (32 Punjab Record 1895) two learned Judges of the Punjab Chief Court (the third dissenting) said in the course of a Full Bench decision that even in the case of ancestral property the daughters sons and their descendants would exclude collaterals of the father. In a more recent case (1953) the Punjab High Court held in Lal Singh v. Roor Singh (55 Punjab Law Reporter 168 at 172) that in the case of non-ancestral property the daughters are preferred to collaterals.We were told that this rule only applies when the daughter succeeds and has no application when she predeceases her father. We say nothing about this because the case before us is one in which the daughter did succeed and all the authorities produced before us indicate that in that event her sons will exclude the collaterals. We were not shown any decision which has taken a contrary view. We are only concerned with non-ancestral property here and express no opinion about what would happen in the case of ancestral property, though the observations of two the learned Judges in the Full Bench of the Punjab Chief Court to which we have referred carry the rule over to ancestral property as well.7. The learned counsel for the plaintiffs relies on paragraph 64 of Rattigans Digest where it is stated that except in two cases which do not apply here, no female in possession of property from, among others, her father can permanently alienate it. But we are not concerned with an alienation here. The gift to the sons may or may not be good after Mst. Biros death as a gift. The question is whether there was an acceleration. If there was, the from it took would not matter.8. We turn, next, to the question of surrender and the only question there is whether the retention by Mst. Biro of the house would prevent an acceleration of the estate. The extent of the property covered by the gift is over 235 bighas. She had an absolute right to gift 123 bighas of this and so the only portion to which the doctrine of surrender would apply would be the remaining 130 odd bighas. But the fact that she gave away all her property to her sons, bar this house, including property to which she had an absolute right, is relevant to show that her intention was to efface herself completely. Now as regards this house, Garja Singh (P.W. 1) gives us this description of it :"The distance between the door of the Sabbat and that of Darwaja is only about two karams." (eleven feet). "Opposite to Darwaja there is one Jhallani the door of which opens into the Sabbat and not in the courtyard. Except Darwaja, Sabbat and Jhallani there is no other roofed portion in their house. There is only one compound for the cattle."9. In this tiny dwelling live not only Mst. Biro but also her three sons. It forms, as the High Court held, a very small part of the whole property. The retention of this, particularly in these circumstances when the sons already live there with her, would not invalidate the surrender. The law about this has been correctly set out in Mullas Hindu Law, 11th edition, page 217, in the following terms :"But the omission, due to ignorance or to oversight, of a small portion of the whole property does not affect the validity of the surrender when it is otherwise bona fide."10. The present case is, in our opinion, covered by that rule. We agree with the High Court that the gift operated to accelerate the succession. That being the case, the plaintiffs are no longer the reversioners even if they would otherwise have been entitled to succeed on failure of the daughters sons and their line. We need not decide whether the plaintiffs, as collaterals in the fifth degree, would be heirs at all.11.
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0[ds]We were not shown how the facts admitted could be disentangled from the law so that we could determine whether the conclusion of law drawn from the admitted facts wasfindings are obviously res judicata and if the plaintiffs learned counsel had not conceded the point the question would at once have been raised and the previous judgments, which were exhibited (Exhibits DD and DF) would have concluded the matter. But as the point was conceded in all three Courts it was not necessary for the defendants to fall back on the previous decisions. It must therefore be accepted here that the whole of the land in dispute waswere told that this rule only applies when the daughter succeeds and has no application when she predeceases her father. We say nothing about this because the case before us is one in which the daughter did succeed and all the authorities produced before us indicate that in that event her sons will exclude the collaterals. We were not shown any decision which has taken a contrary view. We are only concerned with non-ancestral property here and express no opinion about what would happen in the case of ancestral property, though the observations of two the learned Judges in the Full Bench of the Punjab Chief Court to which we have referred carry the rule over to ancestral property aswe are not concerned with an alienation here. The gift to the sons may or may not be good after Mst. Biros death as apresent case is, in our opinion, covered by that rule. We agree with the High Court that the gift operated to accelerate the succession. That being the case, the plaintiffs are no longer the reversioners even if they would otherwise have been entitled to succeed on failure of the daughters sons and their line. We need not decide whether the plaintiffs, as collaterals in the fifth degree, would be heirs at all.
| 0 | 1,977 | 346 |
### 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:
have concluded the matter. But as the point was conceded in all three Courts it was not necessary for the defendants to fall back on the previous decisions. It must therefore be accepted here that the whole of the land in dispute was non-ancestral.That brings us to the question of heirship. Paragraph 23(2) of Rattigans Digest to Customary Law says that -"In regard to the acquired property of her father, the daughter is preferred to the collaterals."5. That is not disputed but what the plaintiffs contend is that she only succeeds as a limited heir and that after her the reversion will go to the fathers heirs in the usual way. But that is not the Punjab custom among the tribe to which the parties belong, namely agricultural Jats. Rattigan quotes the following passage from page 61 of Roe and Rattigans Tribal Law of the Punjab at page 411 of the 13th edition of his Digest :"Where a succession of a married daughter is allowed, the general principle is that the she succeeds not as an ordinary heir, but merely as the means of passing on the property to another male, whose descent from her father in the female line is allowed under exceptional circumstances to count as if it were descent in the male line. She will indeed continue to hold the land in her own name, even after the birth of sons and their attaining majority, for her won life but she has no more power over it than a widow would have. If she has sons, the estate will of course descend to them and their lineal male issue, in the usual way. But if she has no sons, or if their male issue fail, the land will revert, except in some special instances where her husband is allowed to hold for his life, to her fathers agnates, just as it would have done if no exception to the general rule of agnatic succession had ever been in her favour."6. This is supported by at least two decisions from the Punjab. In Lehna v. Mst. Thakri (32 Punjab Record 1895) two learned Judges of the Punjab Chief Court (the third dissenting) said in the course of a Full Bench decision that even in the case of ancestral property the daughters sons and their descendants would exclude collaterals of the father. In a more recent case (1953) the Punjab High Court held in Lal Singh v. Roor Singh (55 Punjab Law Reporter 168 at 172) that in the case of non-ancestral property the daughters are preferred to collaterals.We were told that this rule only applies when the daughter succeeds and has no application when she predeceases her father. We say nothing about this because the case before us is one in which the daughter did succeed and all the authorities produced before us indicate that in that event her sons will exclude the collaterals. We were not shown any decision which has taken a contrary view. We are only concerned with non-ancestral property here and express no opinion about what would happen in the case of ancestral property, though the observations of two the learned Judges in the Full Bench of the Punjab Chief Court to which we have referred carry the rule over to ancestral property as well.7. The learned counsel for the plaintiffs relies on paragraph 64 of Rattigans Digest where it is stated that except in two cases which do not apply here, no female in possession of property from, among others, her father can permanently alienate it. But we are not concerned with an alienation here. The gift to the sons may or may not be good after Mst. Biros death as a gift. The question is whether there was an acceleration. If there was, the from it took would not matter.8. We turn, next, to the question of surrender and the only question there is whether the retention by Mst. Biro of the house would prevent an acceleration of the estate. The extent of the property covered by the gift is over 235 bighas. She had an absolute right to gift 123 bighas of this and so the only portion to which the doctrine of surrender would apply would be the remaining 130 odd bighas. But the fact that she gave away all her property to her sons, bar this house, including property to which she had an absolute right, is relevant to show that her intention was to efface herself completely. Now as regards this house, Garja Singh (P.W. 1) gives us this description of it :"The distance between the door of the Sabbat and that of Darwaja is only about two karams." (eleven feet). "Opposite to Darwaja there is one Jhallani the door of which opens into the Sabbat and not in the courtyard. Except Darwaja, Sabbat and Jhallani there is no other roofed portion in their house. There is only one compound for the cattle."9. In this tiny dwelling live not only Mst. Biro but also her three sons. It forms, as the High Court held, a very small part of the whole property. The retention of this, particularly in these circumstances when the sons already live there with her, would not invalidate the surrender. The law about this has been correctly set out in Mullas Hindu Law, 11th edition, page 217, in the following terms :"But the omission, due to ignorance or to oversight, of a small portion of the whole property does not affect the validity of the surrender when it is otherwise bona fide."10. The present case is, in our opinion, covered by that rule. We agree with the High Court that the gift operated to accelerate the succession. That being the case, the plaintiffs are no longer the reversioners even if they would otherwise have been entitled to succeed on failure of the daughters sons and their line. We need not decide whether the plaintiffs, as collaterals in the fifth degree, would be heirs at all.11.
### Response:
0
### Explanation:
We were not shown how the facts admitted could be disentangled from the law so that we could determine whether the conclusion of law drawn from the admitted facts wasfindings are obviously res judicata and if the plaintiffs learned counsel had not conceded the point the question would at once have been raised and the previous judgments, which were exhibited (Exhibits DD and DF) would have concluded the matter. But as the point was conceded in all three Courts it was not necessary for the defendants to fall back on the previous decisions. It must therefore be accepted here that the whole of the land in dispute waswere told that this rule only applies when the daughter succeeds and has no application when she predeceases her father. We say nothing about this because the case before us is one in which the daughter did succeed and all the authorities produced before us indicate that in that event her sons will exclude the collaterals. We were not shown any decision which has taken a contrary view. We are only concerned with non-ancestral property here and express no opinion about what would happen in the case of ancestral property, though the observations of two the learned Judges in the Full Bench of the Punjab Chief Court to which we have referred carry the rule over to ancestral property aswe are not concerned with an alienation here. The gift to the sons may or may not be good after Mst. Biros death as apresent case is, in our opinion, covered by that rule. We agree with the High Court that the gift operated to accelerate the succession. That being the case, the plaintiffs are no longer the reversioners even if they would otherwise have been entitled to succeed on failure of the daughters sons and their line. We need not decide whether the plaintiffs, as collaterals in the fifth degree, would be heirs at all.
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Commissioner Of Wealth Tax Vs. Hindustan Motors Limited
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the true value. If, therefore, the assessee merely claims that the written down value of the assets should be adopted but fails to produce any materials to show that the written down value is the true value, the Wealth-tax officer is justified in rejecting the claim and adopting the values shown by the assessee himself in his balance sheet as the true value of his assets". We should have thought that the question raised in these appeals is squarely covered by the above decision. Even so, Mrs. Leila Seth submits that in the instant case it is admitted that adequate depreciation could not be provided for in the balance sheet in regard to the depreciable fixed assets on account of paucity of profits and hence the depreciation as provided in the balance sheet was much lower than the depreciation allowable. According to the learned counsel this fact is sufficient to displace the balance sheet as a prim a facie evidence and substitute in its place the written down value and onus shifts on the Revenue to establish that paucity of profits is wrong. 8. It is true, as described in the Statement of the case, that it was not disputed that adequate depreciation could not be provided for in the balance sheet on account of paucity of profits. But we are unable to hold that merely a statement to that effect is sufficient to discharge the onus which rests upon the assessee to establish that the value of the assets shown in the balance sheet is not the real value of the assets as on the valuation date. If the contention of the learned counsel is accepted, it will be tantamount to laying down a rule that in determination of the value of assets the written down value allowable under the Income-tax Act shall always be the value of the assets. In that event, there would be no necessity for any exercise by the Wealth- tax officer. That is, however, not the intention of section 7 which clearly shows that the Wealth-tax officer may make such adjustments in the value of the assets shown in the balance sheet in accordance with the requirements of the circumstances disclosed by the assessee. Those circumstances which will be disclosed by the assessee must relate to the determination of the real value of the assets irrespective of what is shown in the balance sheet if the assessee seeks a lower figure than appearing in the same. Thus onus is not discharged by merely stating that since profits in a given year are less or nil little or no provision was made for depreciation of the assets in the balance sheet. The assessee must also show further to what extent the depreciation has resulted in lowering the value of the assets compared to that mentioned in the balance sheet and whether the written down value computed under the Indian Income-tax Act in fact represents the lower value. It is open, as observed by this Court in the case of Tungabhadra Industries (supra), to establish after producing relevant material that the value of the fixed assets in the balance sheet is artificially inflated. Further in case the assessee wants the written down value to be accepted, it is open to him to establish, as mentioned in that case, by acceptable reason, that the written down value represents the proper value of the assets at the relevant date.The learned counsel also drew our attention to a decision of this Court in the Commissioner of Wealth-tax, West Bengal v. Aluminium Corporation of India Ltd., (1) where at page 172 there is an observation that the value of the assets shown in the balance sheet is not conclusive. The value of the assets shown in the balance sheet is not conclusive in the sense that it can be demonstrated to be more or less than what is shown therein. That is the core of determination under section 7(2) (a) of the Act. The observation of this Court in the above case has to be under stood only in that context. 9. We may in this connection refer to clause (b) of the proviso to clause (vi) of sub-section (2) of section 10 of the Income-tax Act, 1922 where a provision is made for carrying forward of depreciation allowance for the following year or years where full effect cannot be given to the allowance in a particular year owing to there being no profits or gains chargeable for that year or owing to the profits and gains chargeable being less than the allowance. If an assessee chooses to carry forward the depreciation allowance, and shows the value of the assets at a particular figure in the balance sheet, he cannot by merely asserting that there was no profit or very little profit compel the tax authorities to discard the value mentioned in the balance sheet and to accept the written down value. The depreciation must have nexus with real value of the assets itself and the burden is upon the assessee to satisfy the Wealth-tax officer b y producing relevant reliable materials for determination of the actual and true value of the assets. It may be that in a given year the written down value may be the real value of the assets but that cannot be the inexorable rule in determining the value of the assets under section 7 of the Act.Mrs. Seth drew our attention to a decision of the Calcutta High Court in the Commissioner of Wealth-tax (Central) Calcutta v. Mohan Lal Nopany. This was a case of break up value of certain shares of a company. There was material in that case to indicate that the balance sheet did not represent the correct value of the shares. The observation in that case must be taken to be confined to its own facts. To the extent observations are made in that contrary to the view we have taken in the matter, we cannot agree with them. 10.
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1[ds]It is true, as described in the Statement of the case, that it was not disputed that adequate depreciation could not be provided for in the balance sheet on account of paucity of profits. But we are unable to hold that merely a statement to that effect is sufficient to discharge the onus which rests upon the assessee to establish that the value of the assets shown in the balance sheet is not the real value of the assets as on the valuation date. If the contention of the learned counsel is accepted, it will be tantamount to laying down a rule that in determination of the value of assets the written down value allowable under the Income-tax Act shall always be the value of the assets. In that event, there would be no necessity for any exercise by the Wealth- tax officer. That is, however, not the intention of section 7 which clearly shows that the Wealth-tax officer may make such adjustments in the value of the assets shown in the balance sheet in accordance with the requirements of the circumstances disclosed by the assessee. Those circumstances which will be disclosed by the assessee must relate to the determination of the real value of the assets irrespective of what is shown in the balance sheet if the assessee seeks a lower figure than appearing in the same. Thus onus is not discharged by merely stating that since profits in a given year are less or nil little or no provision was made for depreciation of the assets in the balance sheet. The assessee must also show further to what extent the depreciation has resulted in lowering the value of the assets compared to that mentioned in the balance sheet and whether the written down value computed under the Indian Income-tax Act in fact represents the lower value. It is open, as observed by this Court in the case of Tungabhadra Industries (supra), to establish after producing relevant material that the value of the fixed assets in the balance sheet is artificially inflated. Further in case the assessee wants the written down value to be accepted, it is open to him to establish, as mentioned in that case, by acceptable reason, that the written down value represents the proper value of the assets at the relevant date.The learned counsel also drew our attention to a decision of this Court in the Commissioner of Wealth-tax, West Bengal v. Aluminium Corporation of India Ltd., (1) where at page 172 there is an observation that the value of the assets shown in the balance sheet is not conclusive. The value of the assets shown in the balance sheet is not conclusive in the sense that it can be demonstrated to be more or less than what is shown therein. That is the core of determination under section 7(2) (a) of the Act. The observation of this Court in the above case has to be under stood only in that contextWe may in this connection refer to clause (b) of the proviso to clause (vi) of sub-section (2) of section 10 of the Income-tax Act, 1922 where a provision is made for carrying forward of depreciation allowance for the following year or years where full effect cannot be given to the allowance in a particular year owing to there being no profits or gains chargeable for that year or owing to the profits and gains chargeable being less than the allowance. If an assessee chooses to carry forward the depreciation allowance, and shows the value of the assets at a particular figure in the balance sheet, he cannot by merely asserting that there was no profit or very little profit compel the tax authorities to discard the value mentioned in the balance sheet and to accept the written down value. The depreciation must have nexus with real value of the assets itself and the burden is upon the assessee to satisfy the Wealth-tax officer b y producing relevant reliable materials for determination of the actual and true value of the assets. It may be that in a given year the written down value may be the real value of the assets but that cannot be the inexorable rule in determining the value of the assets under section 7 of the Act.Mrs. Seth drew our attention to a decision of the Calcutta High Court in the Commissioner of Wealth-tax (Central) Calcutta v. Mohan Lal Nopany. This was a case of break up value of certain shares of a company. There was material in that case to indicate that the balance sheet did not represent the correct value of the shares. The observation in that case must be taken to be confined to its own facts. To the extent observations are made in that contrary to the view we have taken in the matter, we cannot agree with them.
| 1 | 2,431 | 877 |
### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
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the true value. If, therefore, the assessee merely claims that the written down value of the assets should be adopted but fails to produce any materials to show that the written down value is the true value, the Wealth-tax officer is justified in rejecting the claim and adopting the values shown by the assessee himself in his balance sheet as the true value of his assets". We should have thought that the question raised in these appeals is squarely covered by the above decision. Even so, Mrs. Leila Seth submits that in the instant case it is admitted that adequate depreciation could not be provided for in the balance sheet in regard to the depreciable fixed assets on account of paucity of profits and hence the depreciation as provided in the balance sheet was much lower than the depreciation allowable. According to the learned counsel this fact is sufficient to displace the balance sheet as a prim a facie evidence and substitute in its place the written down value and onus shifts on the Revenue to establish that paucity of profits is wrong. 8. It is true, as described in the Statement of the case, that it was not disputed that adequate depreciation could not be provided for in the balance sheet on account of paucity of profits. But we are unable to hold that merely a statement to that effect is sufficient to discharge the onus which rests upon the assessee to establish that the value of the assets shown in the balance sheet is not the real value of the assets as on the valuation date. If the contention of the learned counsel is accepted, it will be tantamount to laying down a rule that in determination of the value of assets the written down value allowable under the Income-tax Act shall always be the value of the assets. In that event, there would be no necessity for any exercise by the Wealth- tax officer. That is, however, not the intention of section 7 which clearly shows that the Wealth-tax officer may make such adjustments in the value of the assets shown in the balance sheet in accordance with the requirements of the circumstances disclosed by the assessee. Those circumstances which will be disclosed by the assessee must relate to the determination of the real value of the assets irrespective of what is shown in the balance sheet if the assessee seeks a lower figure than appearing in the same. Thus onus is not discharged by merely stating that since profits in a given year are less or nil little or no provision was made for depreciation of the assets in the balance sheet. The assessee must also show further to what extent the depreciation has resulted in lowering the value of the assets compared to that mentioned in the balance sheet and whether the written down value computed under the Indian Income-tax Act in fact represents the lower value. It is open, as observed by this Court in the case of Tungabhadra Industries (supra), to establish after producing relevant material that the value of the fixed assets in the balance sheet is artificially inflated. Further in case the assessee wants the written down value to be accepted, it is open to him to establish, as mentioned in that case, by acceptable reason, that the written down value represents the proper value of the assets at the relevant date.The learned counsel also drew our attention to a decision of this Court in the Commissioner of Wealth-tax, West Bengal v. Aluminium Corporation of India Ltd., (1) where at page 172 there is an observation that the value of the assets shown in the balance sheet is not conclusive. The value of the assets shown in the balance sheet is not conclusive in the sense that it can be demonstrated to be more or less than what is shown therein. That is the core of determination under section 7(2) (a) of the Act. The observation of this Court in the above case has to be under stood only in that context. 9. We may in this connection refer to clause (b) of the proviso to clause (vi) of sub-section (2) of section 10 of the Income-tax Act, 1922 where a provision is made for carrying forward of depreciation allowance for the following year or years where full effect cannot be given to the allowance in a particular year owing to there being no profits or gains chargeable for that year or owing to the profits and gains chargeable being less than the allowance. If an assessee chooses to carry forward the depreciation allowance, and shows the value of the assets at a particular figure in the balance sheet, he cannot by merely asserting that there was no profit or very little profit compel the tax authorities to discard the value mentioned in the balance sheet and to accept the written down value. The depreciation must have nexus with real value of the assets itself and the burden is upon the assessee to satisfy the Wealth-tax officer b y producing relevant reliable materials for determination of the actual and true value of the assets. It may be that in a given year the written down value may be the real value of the assets but that cannot be the inexorable rule in determining the value of the assets under section 7 of the Act.Mrs. Seth drew our attention to a decision of the Calcutta High Court in the Commissioner of Wealth-tax (Central) Calcutta v. Mohan Lal Nopany. This was a case of break up value of certain shares of a company. There was material in that case to indicate that the balance sheet did not represent the correct value of the shares. The observation in that case must be taken to be confined to its own facts. To the extent observations are made in that contrary to the view we have taken in the matter, we cannot agree with them. 10.
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### Explanation:
It is true, as described in the Statement of the case, that it was not disputed that adequate depreciation could not be provided for in the balance sheet on account of paucity of profits. But we are unable to hold that merely a statement to that effect is sufficient to discharge the onus which rests upon the assessee to establish that the value of the assets shown in the balance sheet is not the real value of the assets as on the valuation date. If the contention of the learned counsel is accepted, it will be tantamount to laying down a rule that in determination of the value of assets the written down value allowable under the Income-tax Act shall always be the value of the assets. In that event, there would be no necessity for any exercise by the Wealth- tax officer. That is, however, not the intention of section 7 which clearly shows that the Wealth-tax officer may make such adjustments in the value of the assets shown in the balance sheet in accordance with the requirements of the circumstances disclosed by the assessee. Those circumstances which will be disclosed by the assessee must relate to the determination of the real value of the assets irrespective of what is shown in the balance sheet if the assessee seeks a lower figure than appearing in the same. Thus onus is not discharged by merely stating that since profits in a given year are less or nil little or no provision was made for depreciation of the assets in the balance sheet. The assessee must also show further to what extent the depreciation has resulted in lowering the value of the assets compared to that mentioned in the balance sheet and whether the written down value computed under the Indian Income-tax Act in fact represents the lower value. It is open, as observed by this Court in the case of Tungabhadra Industries (supra), to establish after producing relevant material that the value of the fixed assets in the balance sheet is artificially inflated. Further in case the assessee wants the written down value to be accepted, it is open to him to establish, as mentioned in that case, by acceptable reason, that the written down value represents the proper value of the assets at the relevant date.The learned counsel also drew our attention to a decision of this Court in the Commissioner of Wealth-tax, West Bengal v. Aluminium Corporation of India Ltd., (1) where at page 172 there is an observation that the value of the assets shown in the balance sheet is not conclusive. The value of the assets shown in the balance sheet is not conclusive in the sense that it can be demonstrated to be more or less than what is shown therein. That is the core of determination under section 7(2) (a) of the Act. The observation of this Court in the above case has to be under stood only in that contextWe may in this connection refer to clause (b) of the proviso to clause (vi) of sub-section (2) of section 10 of the Income-tax Act, 1922 where a provision is made for carrying forward of depreciation allowance for the following year or years where full effect cannot be given to the allowance in a particular year owing to there being no profits or gains chargeable for that year or owing to the profits and gains chargeable being less than the allowance. If an assessee chooses to carry forward the depreciation allowance, and shows the value of the assets at a particular figure in the balance sheet, he cannot by merely asserting that there was no profit or very little profit compel the tax authorities to discard the value mentioned in the balance sheet and to accept the written down value. The depreciation must have nexus with real value of the assets itself and the burden is upon the assessee to satisfy the Wealth-tax officer b y producing relevant reliable materials for determination of the actual and true value of the assets. It may be that in a given year the written down value may be the real value of the assets but that cannot be the inexorable rule in determining the value of the assets under section 7 of the Act.Mrs. Seth drew our attention to a decision of the Calcutta High Court in the Commissioner of Wealth-tax (Central) Calcutta v. Mohan Lal Nopany. This was a case of break up value of certain shares of a company. There was material in that case to indicate that the balance sheet did not represent the correct value of the shares. The observation in that case must be taken to be confined to its own facts. To the extent observations are made in that contrary to the view we have taken in the matter, we cannot agree with them.
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G. Ramachandra Reddy & Co Vs. Union of India & Another
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case where it is found that the arbitrator has acted without jurisdiction and has put an interpretation on the clause of the agreement which is wholly contrary to law then in that case there is no prohibition for the courts to set things right." 21. A contract would warrant construction if the terms thereof are vague and ambiguous. The letter exhibiting the offer of the appellant refers to four different documents including the letter dated 9/17.07.1988 which was marked as Exhibit C-2. Whether in the said letter, the appellant had asked for increase of 2.5% over the base value or deducted 2.5% therefrom is a matter of construction.22. The learned Arbitrator, it is not correct to contend, has not taken into consideration the ultimate contract. He did take the same into consideration. He, however, was of the opinion that the aforementioned four letters which were said to be the sole repository of the contract formed part thereof. He, thus, took into consideration the relevant documents for arriving at a finding as to whether they formed part of the contract. Offer of the appellant was accepted.23. The first claim was in relation to disputes regarding additional payment of 2.25% over the quoted rates under item 1 of Schedule A with an overall effect of 4.5% over what had been paid to the plaintiff. The arbitrator came to the conclusion that the letter dated 9/17.7.1988 (Ex.C.2) does not make out whether the contractor intended to quote the price with +2.25% and therefore, he held that a concluded contract has taken place after taking into consideration the sign (+) mentioned in the above letter. The contract will therefore still be enforced even if it is assumed that there was a mistake on the part of the respondent. The High Court held that it was apparent on the face of record that the contractor intended only to reduce 2.25%, which was seen from Ex.C.5, which was final and concluded, claim no 1 fails for that reason. But as the Arbitrator held that the letter of the contractor dated 9/17.7.1988 formed part of the contract, the claim cannot fail and therefore the award of the Learned Arbitrator, in respect of claim No 1 must be sustained.24. In relation to Claim No.2, the respondent relied on the fact that the claimant received payment only at the rate of 21% towards labour escalation in the several R.A.Rs and therefore, it has to be presumed that the claimant is entitled to only 21%. The Arbitrator opined that the receipt of money at 21% cannot absolve the claimant from claiming at 40% as per the contract, particularly, when it is clearly mentioned in Ex C.2 (R1) that 40% will be the labour component which forms part of the contract, Ex C.5. The High Court held that as the Department themselves gave 21% to the contractor, and only 21% of escalation, which was in consonance with the special conditions, which was apparent on the face of the record, the second claim of escalation of 40% was to be set aside. But, keeping the same principle as applied in relation to Claim No.1, the Arbitrator held that as the covering letter (Ex.C.2) is part of the tender bid, and since the tender bid has been accepted without any modification, the Figure of 21% has to be substituted by 40%. Therefore, in respect of claim No.2, the impugned judgment of the High Court cannot be upheld and the award of the Arbitrator is sustained.25. The matter might have been different had the respondents in categorical terms rejected the offer made by the appellant as amended by its letter dated 19.7.1988. It did not do it. Thus, the contract remained open for construction.26. We have not been able to persuade ourselves to agree with the reasonings of the Division Bench of the High Court. The award of the learned Arbitrator in respect of claim No.1, therefore, must be sustained.27. Keeping in view the fact that the same principle would apply in respect of claim No.2 also, the impugned judgment of the High Court cannot be upheld.28. So far as Claim No.3 is concerned, the claim towards higher minimum wages paid to the workmen is not in dispute. A high rise building is a high rise building, it cannot be divided into two parts.What would constitute a high rise building was defined. A portion of the building cannot be high rise and a portion would fall within the purview of the said definition. The learned Arbitrator, in our opinion, had rightly opined that the same workers may have to work for constructions of the entire building as it will be impossible for any contractor to employ any workmen to work exclusively for the high rise building. Furthermore, the same workmen may have to work in different parts of the same building at different times. It would lead to an absurd situation if the workmen at one point of time are not paid the 20% of the excess amount and then paid the same and yet again denied the same benefit. Interpretation of the High Court, therefore, that high rise building mean portion of the building, in our opinion, keeping in view the beneficent nature of the provisions, cannot be accepted.29. The award of the Arbitrator in respect of claim No.4 has been accepted by the Division Bench. Mr. B.B. Singh has drawn our attention to clause 11(c) of the general conditions of contract to contend that in terms thereof, no damages were payable.The question as to whether damages were payable for illegal termination of contract cannot be a subject matter of contract. The learned Arbitrator has categorically held that not only the termination of contract was illegal, the same was mala fide. Furthermore, the contention raised before us by Mr. Singh has not been raised before the High Court.30. In any event, there is a delay of 411 days in filing the SLP of the respondent, for which no sufficient explanation has been given.
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0[ds]21. A contract would warrant construction if the terms thereof are vague and ambiguous. The letter exhibiting the offer of the appellant refers to four different documents including the letter dated 9/17.07.1988 which was marked as ExhibitWhether in the said letter, the appellant had asked for increase of 2.5% over the base value or deducted 2.5% therefrom is a matter of construction.22. The learned Arbitrator, it is not correct to contend, has not taken into consideration the ultimate contract. He did take the same into consideration. He, however, was of the opinion that the aforementioned four letters which were said to be the sole repository of the contract formed part thereof. He, thus, took into consideration the relevant documents for arriving at a finding as to whether they formed part of the contract. Offer of the appellant was accepted.23. The first claim was in relation to disputes regarding additional payment of 2.25% over the quoted rates under item 1 of Schedule A with an overall effect of 4.5% over what had been paid to the plaintiff. The arbitrator came to the conclusion that the letter dated 9/17.7.1988 (Ex.C.2) does not make out whether the contractor intended to quote the price with +2.25% and therefore, he held that a concluded contract has taken place after taking into consideration the sign (+) mentioned in the above letter. The contract will therefore still be enforced even if it is assumed that there was a mistake on the part of the respondent. The High Court held that it was apparent on the face of record that the contractor intended only to reduce 2.25%, which was seen from Ex.C.5, which was final and concluded, claim no 1 fails for that reason. But as the Arbitrator held that the letter of the contractor dated 9/17.7.1988 formed part of the contract, the claim cannot fail and therefore the award of the Learned Arbitrator, in respect of claim No 1 must be sustained.24. In relation to Claim No.2, the respondent relied on the fact that the claimant received payment only at the rate of 21% towards labour escalation in the several R.A.Rs and therefore, it has to be presumed that the claimant is entitled to only 21%. The Arbitrator opined that the receipt of money at 21% cannot absolve the claimant from claiming at 40% as per the contract, particularly, when it is clearly mentioned in Ex C.2 (R1) that 40% will be the labour component which forms part of the contract, Ex C.5. The High Court held that as the Department themselves gave 21% to the contractor, and only 21% of escalation, which was in consonance with the special conditions, which was apparent on the face of the record, the second claim of escalation of 40% was to be set aside. But, keeping the same principle as applied in relation to Claim No.1, the Arbitrator held that as the covering letter (Ex.C.2) is part of the tender bid, and since the tender bid has been accepted without any modification, the Figure of 21% has to be substituted by 40%. Therefore, in respect of claim No.2, the impugned judgment of the High Court cannot be upheld and the award of the Arbitrator is sustained.25. The matter might have been different had the respondents in categorical terms rejected the offer made by the appellant as amended by its letter dated 19.7.1988. It did not do it. Thus, the contract remained open for construction.26. We have not been able to persuade ourselves to agree with the reasonings of the Division Bench of the High Court. The award of the learned Arbitrator in respect of claim No.1, therefore, must be sustained.27. Keeping in view the fact that the same principle would apply in respect of claim No.2 also, the impugned judgment of the High Court cannot be upheld.28. So far as Claim No.3 is concerned, the claim towards higher minimum wages paid to the workmen is not in dispute. A high rise building is a high rise building, it cannot be divided into two parts.What would constitute a high rise building was defined. A portion of the building cannot be high rise and a portion would fall within the purview of the said definition. The learned Arbitrator, in our opinion, had rightly opined that the same workers may have to work for constructions of the entire building as it will be impossible for any contractor to employ any workmen to work exclusively for the high rise building. Furthermore, the same workmen may have to work in different parts of the same building at different times. It would lead to an absurd situation if the workmen at one point of time are not paid the 20% of the excess amount and then paid the same and yet again denied the same benefit. Interpretation of the High Court, therefore, that high rise building mean portion of the building, in our opinion, keeping in view the beneficent nature of the provisions, cannot be accepted.29. The award of the Arbitrator in respect of claim No.4 has been accepted by the Division Bench. Mr. B.B. Singh has drawn our attention to clause 11(c) of the general conditions of contract to contend that in terms thereof, no damages were payable.The question as to whether damages were payable for illegal termination of contract cannot be a subject matter of contract. The learned Arbitrator has categorically held that not only the termination of contract was illegal, the same was mala fide. Furthermore, the contention raised before us by Mr. Singh has not been raised before the High Court.30. In any event, there is a delay of 411 days in filing the SLP of the respondent, for which no sufficient explanation has been given.
| 0 | 5,534 | 1,078 |
### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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case where it is found that the arbitrator has acted without jurisdiction and has put an interpretation on the clause of the agreement which is wholly contrary to law then in that case there is no prohibition for the courts to set things right." 21. A contract would warrant construction if the terms thereof are vague and ambiguous. The letter exhibiting the offer of the appellant refers to four different documents including the letter dated 9/17.07.1988 which was marked as Exhibit C-2. Whether in the said letter, the appellant had asked for increase of 2.5% over the base value or deducted 2.5% therefrom is a matter of construction.22. The learned Arbitrator, it is not correct to contend, has not taken into consideration the ultimate contract. He did take the same into consideration. He, however, was of the opinion that the aforementioned four letters which were said to be the sole repository of the contract formed part thereof. He, thus, took into consideration the relevant documents for arriving at a finding as to whether they formed part of the contract. Offer of the appellant was accepted.23. The first claim was in relation to disputes regarding additional payment of 2.25% over the quoted rates under item 1 of Schedule A with an overall effect of 4.5% over what had been paid to the plaintiff. The arbitrator came to the conclusion that the letter dated 9/17.7.1988 (Ex.C.2) does not make out whether the contractor intended to quote the price with +2.25% and therefore, he held that a concluded contract has taken place after taking into consideration the sign (+) mentioned in the above letter. The contract will therefore still be enforced even if it is assumed that there was a mistake on the part of the respondent. The High Court held that it was apparent on the face of record that the contractor intended only to reduce 2.25%, which was seen from Ex.C.5, which was final and concluded, claim no 1 fails for that reason. But as the Arbitrator held that the letter of the contractor dated 9/17.7.1988 formed part of the contract, the claim cannot fail and therefore the award of the Learned Arbitrator, in respect of claim No 1 must be sustained.24. In relation to Claim No.2, the respondent relied on the fact that the claimant received payment only at the rate of 21% towards labour escalation in the several R.A.Rs and therefore, it has to be presumed that the claimant is entitled to only 21%. The Arbitrator opined that the receipt of money at 21% cannot absolve the claimant from claiming at 40% as per the contract, particularly, when it is clearly mentioned in Ex C.2 (R1) that 40% will be the labour component which forms part of the contract, Ex C.5. The High Court held that as the Department themselves gave 21% to the contractor, and only 21% of escalation, which was in consonance with the special conditions, which was apparent on the face of the record, the second claim of escalation of 40% was to be set aside. But, keeping the same principle as applied in relation to Claim No.1, the Arbitrator held that as the covering letter (Ex.C.2) is part of the tender bid, and since the tender bid has been accepted without any modification, the Figure of 21% has to be substituted by 40%. Therefore, in respect of claim No.2, the impugned judgment of the High Court cannot be upheld and the award of the Arbitrator is sustained.25. The matter might have been different had the respondents in categorical terms rejected the offer made by the appellant as amended by its letter dated 19.7.1988. It did not do it. Thus, the contract remained open for construction.26. We have not been able to persuade ourselves to agree with the reasonings of the Division Bench of the High Court. The award of the learned Arbitrator in respect of claim No.1, therefore, must be sustained.27. Keeping in view the fact that the same principle would apply in respect of claim No.2 also, the impugned judgment of the High Court cannot be upheld.28. So far as Claim No.3 is concerned, the claim towards higher minimum wages paid to the workmen is not in dispute. A high rise building is a high rise building, it cannot be divided into two parts.What would constitute a high rise building was defined. A portion of the building cannot be high rise and a portion would fall within the purview of the said definition. The learned Arbitrator, in our opinion, had rightly opined that the same workers may have to work for constructions of the entire building as it will be impossible for any contractor to employ any workmen to work exclusively for the high rise building. Furthermore, the same workmen may have to work in different parts of the same building at different times. It would lead to an absurd situation if the workmen at one point of time are not paid the 20% of the excess amount and then paid the same and yet again denied the same benefit. Interpretation of the High Court, therefore, that high rise building mean portion of the building, in our opinion, keeping in view the beneficent nature of the provisions, cannot be accepted.29. The award of the Arbitrator in respect of claim No.4 has been accepted by the Division Bench. Mr. B.B. Singh has drawn our attention to clause 11(c) of the general conditions of contract to contend that in terms thereof, no damages were payable.The question as to whether damages were payable for illegal termination of contract cannot be a subject matter of contract. The learned Arbitrator has categorically held that not only the termination of contract was illegal, the same was mala fide. Furthermore, the contention raised before us by Mr. Singh has not been raised before the High Court.30. In any event, there is a delay of 411 days in filing the SLP of the respondent, for which no sufficient explanation has been given.
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0
### Explanation:
21. A contract would warrant construction if the terms thereof are vague and ambiguous. The letter exhibiting the offer of the appellant refers to four different documents including the letter dated 9/17.07.1988 which was marked as ExhibitWhether in the said letter, the appellant had asked for increase of 2.5% over the base value or deducted 2.5% therefrom is a matter of construction.22. The learned Arbitrator, it is not correct to contend, has not taken into consideration the ultimate contract. He did take the same into consideration. He, however, was of the opinion that the aforementioned four letters which were said to be the sole repository of the contract formed part thereof. He, thus, took into consideration the relevant documents for arriving at a finding as to whether they formed part of the contract. Offer of the appellant was accepted.23. The first claim was in relation to disputes regarding additional payment of 2.25% over the quoted rates under item 1 of Schedule A with an overall effect of 4.5% over what had been paid to the plaintiff. The arbitrator came to the conclusion that the letter dated 9/17.7.1988 (Ex.C.2) does not make out whether the contractor intended to quote the price with +2.25% and therefore, he held that a concluded contract has taken place after taking into consideration the sign (+) mentioned in the above letter. The contract will therefore still be enforced even if it is assumed that there was a mistake on the part of the respondent. The High Court held that it was apparent on the face of record that the contractor intended only to reduce 2.25%, which was seen from Ex.C.5, which was final and concluded, claim no 1 fails for that reason. But as the Arbitrator held that the letter of the contractor dated 9/17.7.1988 formed part of the contract, the claim cannot fail and therefore the award of the Learned Arbitrator, in respect of claim No 1 must be sustained.24. In relation to Claim No.2, the respondent relied on the fact that the claimant received payment only at the rate of 21% towards labour escalation in the several R.A.Rs and therefore, it has to be presumed that the claimant is entitled to only 21%. The Arbitrator opined that the receipt of money at 21% cannot absolve the claimant from claiming at 40% as per the contract, particularly, when it is clearly mentioned in Ex C.2 (R1) that 40% will be the labour component which forms part of the contract, Ex C.5. The High Court held that as the Department themselves gave 21% to the contractor, and only 21% of escalation, which was in consonance with the special conditions, which was apparent on the face of the record, the second claim of escalation of 40% was to be set aside. But, keeping the same principle as applied in relation to Claim No.1, the Arbitrator held that as the covering letter (Ex.C.2) is part of the tender bid, and since the tender bid has been accepted without any modification, the Figure of 21% has to be substituted by 40%. Therefore, in respect of claim No.2, the impugned judgment of the High Court cannot be upheld and the award of the Arbitrator is sustained.25. The matter might have been different had the respondents in categorical terms rejected the offer made by the appellant as amended by its letter dated 19.7.1988. It did not do it. Thus, the contract remained open for construction.26. We have not been able to persuade ourselves to agree with the reasonings of the Division Bench of the High Court. The award of the learned Arbitrator in respect of claim No.1, therefore, must be sustained.27. Keeping in view the fact that the same principle would apply in respect of claim No.2 also, the impugned judgment of the High Court cannot be upheld.28. So far as Claim No.3 is concerned, the claim towards higher minimum wages paid to the workmen is not in dispute. A high rise building is a high rise building, it cannot be divided into two parts.What would constitute a high rise building was defined. A portion of the building cannot be high rise and a portion would fall within the purview of the said definition. The learned Arbitrator, in our opinion, had rightly opined that the same workers may have to work for constructions of the entire building as it will be impossible for any contractor to employ any workmen to work exclusively for the high rise building. Furthermore, the same workmen may have to work in different parts of the same building at different times. It would lead to an absurd situation if the workmen at one point of time are not paid the 20% of the excess amount and then paid the same and yet again denied the same benefit. Interpretation of the High Court, therefore, that high rise building mean portion of the building, in our opinion, keeping in view the beneficent nature of the provisions, cannot be accepted.29. The award of the Arbitrator in respect of claim No.4 has been accepted by the Division Bench. Mr. B.B. Singh has drawn our attention to clause 11(c) of the general conditions of contract to contend that in terms thereof, no damages were payable.The question as to whether damages were payable for illegal termination of contract cannot be a subject matter of contract. The learned Arbitrator has categorically held that not only the termination of contract was illegal, the same was mala fide. Furthermore, the contention raised before us by Mr. Singh has not been raised before the High Court.30. In any event, there is a delay of 411 days in filing the SLP of the respondent, for which no sufficient explanation has been given.
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M/S. Maharana Mills (Private) Ltd Vs. The Income-Tax Officer, Porbandar
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of AIR) Lord Romer observed:"In the present case it is a debatable question whether the circumstances were such as to bring it within the provisions of S. 34. It is not necessary to determine that question inasmuch, as, in their Lordships opinion, the case clearly would have fallen within the provisions of section 35 had the Income-tax Officer exercised his powers under the section within one year from the date on which the earlier demand was served upon the respondents. For, looking at the record of the assessment made upon them as it stood after the cancellation of the respondents registration-and the order affecting the cancellation would have formed part of that record-it would be apparent that a mistake had been made in stating that no super-tax was leviable."Thus the order effecting the cancellation of the assessees firm was considered to have formed part of the record of the case.16. In Sidramappa Andannappa v. Commissioner of Income-tax, 1952-21 ITR 333: (AIR 1952 Bom 287 ) the facts were that a debt belonging to a joint family fell on partition to the share of the assessee. This debt was held not to be recoverable by a judgment of the Bombay High Court dated September 29, 1941. Holding it to be within the accounting year the Appellate Tribunal allowed this sum to be taken into consideration for the purpose of the accounting year. It subsequently corrected the error. It was held that under S. 35 the Tribunal was entitled to rectify the mistake and was competent to pass a consequential order dismissing the appeal instead of allowing it.17. The power under S. 35 is no doubt limited to rectification of mistakes which are apparent from the record. A mistake contemplated by this section is not one which is to be discovered as a result of an argument but it is open to the Income-tax Officer to examine the record including the evidence and if he discovers any mistake he is entitled to rectify the error provided that if the result is enhancement of assessment or reducing the refund then notice has to be given to the assessee and he should be allowed a reasonable opportunity of being heard.18. The scope and effect of the expression "mistake apparent from the record" and the extent of the powers of the Income-tax Officer under S. 35 of the Act were discussed by this Court in Venkatachalam v. Bombay Dyeing and Mfg. Co. Ltd., 1958-34 ITR 143 at p. 149): (AIR 1958 SC 875 at p. 879) where the facts were these: A sum of Rs. 50,063 being interest on tax paid in advance was given credit for under S. 18A(5) of the Act. Subsequently there was an amendment of the Act by which the interest became allowable only on the difference between the amount of tax paid and what was actually determined. As a consequence of this the Income-tax Officer purporting to act under S. 35 of the Act rectified the mistake and reduced the amount of interest credited to Rs. 21,157 and issued a demand for the difference. The assessee obtained a writ of prohibition against the Income-tax Officer on the ground that the mistake contemplated under that provision had to be apparent on the face of the Order and it was not contemplated to cover a mistake resulting from an amendment of the law even though it was retrospective in its effect. The Revenue appealed to this Court. Thus the question for decision in that case was whether an order proper and valid when made could be said to disclose a mistake apparent from the record merely because it became erroneous as a result of a subsequent amendment of the law which was retrospective in its operation. In delivering the judgment of the Court Gajendragadkar J., said:-"At the time when the Income-tax Officer applied his mind to the question of rectifying the alleged mistake, there can be no doubt that he had to read the principal Act as containing the inserted proviso as from April 1, 1952. If that be the true position then the order which he made giving credit to the respondent for Rs. 50,603-15-0 is plainly and obviously inconsistent with a specific and clear provision of the statute and that must inevitably be treated as a mistake of law apparent from the record. If a mistake of fact apparent from the record of the assessment order can be rectified under S. 35 we see no reason why a mistake of law which is glaring and obvious cannot be similarly rectified."The decision of the Privy Council in 1938-6 ITR 414 : (AIR 1938 PC 175 ) was referred to.19. Counsel for the appellant sought to distinguish both these cases; Venkatachalams case, 1958-34 ITR 143 : (AIR 1958 SC 875 ) and Khem Chands case, 1938-6 ITR 414 : (AIR 1938 PC 175 ) on the ground that the record there considered was the assessment record of that year and the Income-tax Officer did not have to go to the records of the previous year. That is a distinction without a difference. If, for instance, the Income-tax Officer had found that in the assessment year 1952-53 there was an apparent arithmetical mistake in the account of the Written Down Value of the properties which resulted in a corresponding mistake in the assessment of the year in controversy could he not take the corrected figure for the purposes of the assessment and could it be said that the mistake was not apparent from the record? A fortiori if he discovered that the very basis of the different assessments was erroneous because of an initial mistake in determining the Written Down Value could it be said that this would not be a mistake apparent from the record? And if in order to determine the correct Written Down Value the Income-tax Officer makes correct calculations, can it be said that that is not rectifying a mistake apparent from the record but is de hors it?
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0[ds]7. The power under S. 35 is no doubt limited to rectification of mistakes which are apparent from the record. A mistake contemplated by this section is not one which is to be discovered as a result of an argument but it is open to the Income-tax Officer to examine the record including the evidence and if he discovers any mistake he is entitled to rectify the error provided that if the result is enhancement of assessment or reducing the refund then notice has to be given to the assessee and he should be allowed a reasonable opportunity of being heard.18. The scope and effect of the expression "mistake apparent from the record" and the extent of the powers of the Income-tax Officer under S. 35 of the Act were discussed by this Court in Venkatachalam v. Bombay Dyeing and Mfg. Co. Ltd., 1958-34 ITR 143 at p. 149): (AIR 1958 SC 875 at p. 879) where the facts were these: A sum of Rs. 50,063 being interest on tax paid in advance was given credit for under S. 18A(5) of the Act. Subsequently there was an amendment of the Act by which the interest became allowable only on the difference between the amount of tax paid and what was actually determined. As a consequence of this the Income-tax Officer purporting to act under S. 35 of the Act rectified the mistake and reduced the amount of interest credited to Rs. 21,157 and issued a demand for the difference. The assessee obtained a writ of prohibition against the Income-tax Officer on the ground that the mistake contemplated under that provision had to be apparent on the face of the Order and it was not contemplated to cover a mistake resulting from an amendment of the law even though it was retrospective in its effect. The Revenue appealed to this Court. Thus the question for decision in that case was whether an order proper and valid when made could be said to disclose a mistake apparent from the record merely because it became erroneous as a result of a subsequent amendment of the law which was retrospective in its operation. In delivering the judgment of the Court Gajendragadkar J.,the time when the Income-tax Officer applied his mind to the question of rectifying the alleged mistake, there can be no doubt that he had to read the principal Act as containing the inserted proviso as from April 1, 1952. If that be the true position then the order which he made giving credit to the respondent for Rs. 50,603-15-0 is plainly and obviously inconsistent with a specific and clear provision of the statute and that must inevitably be treated as a mistake of law apparent from the record. If a mistake of fact apparent from the record of the assessment order can be rectified under S. 35 we see no reason why a mistake of law which is glaring and obvious cannot be similarlydecision of the Privy Council in 1938-6 ITR 414 : (AIR 1938 PC 175 ) was referred to.19. Counsel for the appellant sought to distinguish both these cases; Venkatachalams case, 1958-34 ITR 143 : (AIR 1958 SC 875 ) and Khem Chands case, 1938-6 ITR 414 : (AIR 1938 PC 175 ) on the ground that the record there considered was the assessment record of that year and the Income-tax Officer did not have to go to the records of the previous year. That is a distinction without a difference. If, for instance, the Income-tax Officer had found that in the assessment year 1952-53 there was an apparent arithmetical mistake in the account of the Written Down Value of the properties which resulted in a corresponding mistake in the assessment of the year in controversy could he not take the corrected figure for the purposes of the assessment and could it be said that the mistake was not apparent from the record? A fortiori if he discovered that the very basis of the different assessments was erroneous because of an initial mistake in determining the Written Down Value could it be said that this would not be a mistake apparent from the record? And if in order to determine the correct Written Down Value the Income-tax Officer makes correct calculations, can it be said that that is not rectifying a mistake apparent from the record but is de hors it?
| 0 | 5,070 | 781 |
### 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:
of AIR) Lord Romer observed:"In the present case it is a debatable question whether the circumstances were such as to bring it within the provisions of S. 34. It is not necessary to determine that question inasmuch, as, in their Lordships opinion, the case clearly would have fallen within the provisions of section 35 had the Income-tax Officer exercised his powers under the section within one year from the date on which the earlier demand was served upon the respondents. For, looking at the record of the assessment made upon them as it stood after the cancellation of the respondents registration-and the order affecting the cancellation would have formed part of that record-it would be apparent that a mistake had been made in stating that no super-tax was leviable."Thus the order effecting the cancellation of the assessees firm was considered to have formed part of the record of the case.16. In Sidramappa Andannappa v. Commissioner of Income-tax, 1952-21 ITR 333: (AIR 1952 Bom 287 ) the facts were that a debt belonging to a joint family fell on partition to the share of the assessee. This debt was held not to be recoverable by a judgment of the Bombay High Court dated September 29, 1941. Holding it to be within the accounting year the Appellate Tribunal allowed this sum to be taken into consideration for the purpose of the accounting year. It subsequently corrected the error. It was held that under S. 35 the Tribunal was entitled to rectify the mistake and was competent to pass a consequential order dismissing the appeal instead of allowing it.17. The power under S. 35 is no doubt limited to rectification of mistakes which are apparent from the record. A mistake contemplated by this section is not one which is to be discovered as a result of an argument but it is open to the Income-tax Officer to examine the record including the evidence and if he discovers any mistake he is entitled to rectify the error provided that if the result is enhancement of assessment or reducing the refund then notice has to be given to the assessee and he should be allowed a reasonable opportunity of being heard.18. The scope and effect of the expression "mistake apparent from the record" and the extent of the powers of the Income-tax Officer under S. 35 of the Act were discussed by this Court in Venkatachalam v. Bombay Dyeing and Mfg. Co. Ltd., 1958-34 ITR 143 at p. 149): (AIR 1958 SC 875 at p. 879) where the facts were these: A sum of Rs. 50,063 being interest on tax paid in advance was given credit for under S. 18A(5) of the Act. Subsequently there was an amendment of the Act by which the interest became allowable only on the difference between the amount of tax paid and what was actually determined. As a consequence of this the Income-tax Officer purporting to act under S. 35 of the Act rectified the mistake and reduced the amount of interest credited to Rs. 21,157 and issued a demand for the difference. The assessee obtained a writ of prohibition against the Income-tax Officer on the ground that the mistake contemplated under that provision had to be apparent on the face of the Order and it was not contemplated to cover a mistake resulting from an amendment of the law even though it was retrospective in its effect. The Revenue appealed to this Court. Thus the question for decision in that case was whether an order proper and valid when made could be said to disclose a mistake apparent from the record merely because it became erroneous as a result of a subsequent amendment of the law which was retrospective in its operation. In delivering the judgment of the Court Gajendragadkar J., said:-"At the time when the Income-tax Officer applied his mind to the question of rectifying the alleged mistake, there can be no doubt that he had to read the principal Act as containing the inserted proviso as from April 1, 1952. If that be the true position then the order which he made giving credit to the respondent for Rs. 50,603-15-0 is plainly and obviously inconsistent with a specific and clear provision of the statute and that must inevitably be treated as a mistake of law apparent from the record. If a mistake of fact apparent from the record of the assessment order can be rectified under S. 35 we see no reason why a mistake of law which is glaring and obvious cannot be similarly rectified."The decision of the Privy Council in 1938-6 ITR 414 : (AIR 1938 PC 175 ) was referred to.19. Counsel for the appellant sought to distinguish both these cases; Venkatachalams case, 1958-34 ITR 143 : (AIR 1958 SC 875 ) and Khem Chands case, 1938-6 ITR 414 : (AIR 1938 PC 175 ) on the ground that the record there considered was the assessment record of that year and the Income-tax Officer did not have to go to the records of the previous year. That is a distinction without a difference. If, for instance, the Income-tax Officer had found that in the assessment year 1952-53 there was an apparent arithmetical mistake in the account of the Written Down Value of the properties which resulted in a corresponding mistake in the assessment of the year in controversy could he not take the corrected figure for the purposes of the assessment and could it be said that the mistake was not apparent from the record? A fortiori if he discovered that the very basis of the different assessments was erroneous because of an initial mistake in determining the Written Down Value could it be said that this would not be a mistake apparent from the record? And if in order to determine the correct Written Down Value the Income-tax Officer makes correct calculations, can it be said that that is not rectifying a mistake apparent from the record but is de hors it?
### Response:
0
### Explanation:
7. The power under S. 35 is no doubt limited to rectification of mistakes which are apparent from the record. A mistake contemplated by this section is not one which is to be discovered as a result of an argument but it is open to the Income-tax Officer to examine the record including the evidence and if he discovers any mistake he is entitled to rectify the error provided that if the result is enhancement of assessment or reducing the refund then notice has to be given to the assessee and he should be allowed a reasonable opportunity of being heard.18. The scope and effect of the expression "mistake apparent from the record" and the extent of the powers of the Income-tax Officer under S. 35 of the Act were discussed by this Court in Venkatachalam v. Bombay Dyeing and Mfg. Co. Ltd., 1958-34 ITR 143 at p. 149): (AIR 1958 SC 875 at p. 879) where the facts were these: A sum of Rs. 50,063 being interest on tax paid in advance was given credit for under S. 18A(5) of the Act. Subsequently there was an amendment of the Act by which the interest became allowable only on the difference between the amount of tax paid and what was actually determined. As a consequence of this the Income-tax Officer purporting to act under S. 35 of the Act rectified the mistake and reduced the amount of interest credited to Rs. 21,157 and issued a demand for the difference. The assessee obtained a writ of prohibition against the Income-tax Officer on the ground that the mistake contemplated under that provision had to be apparent on the face of the Order and it was not contemplated to cover a mistake resulting from an amendment of the law even though it was retrospective in its effect. The Revenue appealed to this Court. Thus the question for decision in that case was whether an order proper and valid when made could be said to disclose a mistake apparent from the record merely because it became erroneous as a result of a subsequent amendment of the law which was retrospective in its operation. In delivering the judgment of the Court Gajendragadkar J.,the time when the Income-tax Officer applied his mind to the question of rectifying the alleged mistake, there can be no doubt that he had to read the principal Act as containing the inserted proviso as from April 1, 1952. If that be the true position then the order which he made giving credit to the respondent for Rs. 50,603-15-0 is plainly and obviously inconsistent with a specific and clear provision of the statute and that must inevitably be treated as a mistake of law apparent from the record. If a mistake of fact apparent from the record of the assessment order can be rectified under S. 35 we see no reason why a mistake of law which is glaring and obvious cannot be similarlydecision of the Privy Council in 1938-6 ITR 414 : (AIR 1938 PC 175 ) was referred to.19. Counsel for the appellant sought to distinguish both these cases; Venkatachalams case, 1958-34 ITR 143 : (AIR 1958 SC 875 ) and Khem Chands case, 1938-6 ITR 414 : (AIR 1938 PC 175 ) on the ground that the record there considered was the assessment record of that year and the Income-tax Officer did not have to go to the records of the previous year. That is a distinction without a difference. If, for instance, the Income-tax Officer had found that in the assessment year 1952-53 there was an apparent arithmetical mistake in the account of the Written Down Value of the properties which resulted in a corresponding mistake in the assessment of the year in controversy could he not take the corrected figure for the purposes of the assessment and could it be said that the mistake was not apparent from the record? A fortiori if he discovered that the very basis of the different assessments was erroneous because of an initial mistake in determining the Written Down Value could it be said that this would not be a mistake apparent from the record? And if in order to determine the correct Written Down Value the Income-tax Officer makes correct calculations, can it be said that that is not rectifying a mistake apparent from the record but is de hors it?
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F.C.I. Represented By Managing Director & Another Vs. A.M. Ahmed & Company Through Md & Another
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Leave granted. The arbitration award, in the present case, pertaining to the disputes between the appellants and the respondents, was published on 10-4-1992 and was filed in the Court of Subordinate Judge at Tuticorin on 30-6-1992. The notice of filing of this award was served on the appellants on 18-7-1992. The appellants moved the High Court contending that the Subordinate Court at Tuticorin was a court without jurisdiction for the purposes of filing the award. Ultimately, the Division Bench of the Madras High Court, by its judgment and order dated 23-3-1993, held that since the arbitrator had been appointed under the orders of the High Court, no other court had any jurisdiction over the arbitration or in respect of the award therein. The High Court, however, in addition, said that in any event, under Section 24 of the Code of Civil Procedure, the Court had the power to order withdrawal of the proceedings from the Subordinate Court at Tuticorin to the High Court. The High Court, thereupon, directed that the award and the proceedings in the Subordinate Court, Tuticorin be withdrawn from that court to the High Court for disposal in accordance with law. Thereafter on 2-9-1993, the appellants received a notice of transfer of the said proceeding from the High Court. The exact contents of the notice are not before us. However, the notice pertains to the transfer of the award to the High Court and requires the appellant to pay additional court fees.The appellants have filed objections to the award in a petition to set aside the award, on 29-9-1993. By the impugned judgment and order, the High Court has held that since the petition to set aside the award has been filed more than 30 days after the date of service of the notice on the appellants, the petition/objections are barred by limitation. If the notice of filing of the award is taken as the notice served by the Subordinate Court at Tuticorin, obviously, the objections have been filed more than 30 days after the notice. However, in the present case, the Division Bench in its judgment of 23-3-1993 has clearly held that the Subordinate Court at Tuticorin had no jurisdiction to take the award on file or to consider the application for a decree in terms of the award. Thereafter, the High Court has also referred to Section 24 of the Code of Civil Procedure and directed transfer of the award and proceedings to the High Court. The order under Section 24 has been passed because the High Court was of the view that the Subordinate Court at Tuticorin has no jurisdiction. In this view of the matter, any notice issued by the Subordinate Court at Tuticorin is a notice issued by a court without jurisdiction and is not a valid notice for the purpose of Article 119(a) of the Limitation Act.Under Section 31 of the Arbitration Act, 1940, an award may be filed in any court having jurisdiction in the matter to which the reference relates. Under sub-section (4) of Section 31, where in any reference any application under the Arbitration Act has been made in a court competent to entertain it, that court alone has jurisdiction over the arbitration proceedings and all subsequent applications arising out of that reference. The High Court has held that the Subordinate Court at Tuticorin has no jurisdiction in view of the earlier orders of the High Court. The notice of the Subordinate Court is, therefore, invalid.
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1[ds]If the notice of filing of the award is taken as the notice served by the Subordinate Court at Tuticorin, obviously, the objections have been filed more than 30 days after the notice. However, in the present case, the Division Bench in its judgment ofhas clearly held that the Subordinate Court at Tuticorin had no jurisdiction to take the award on file or to consider the application for a decree in terms of the award. Thereafter, the High Court has also referred to Section 24 of the Code of Civil Procedure and directed transfer of the award and proceedings to the High Court. The order under Section 24 has been passed because the High Court was of the view that the Subordinate Court at Tuticorin has no jurisdiction. In this view of the matter, any notice issued by the Subordinate Court at Tuticorin is a notice issued by a court without jurisdiction and is not a valid notice for the purpose of Article 119(a) of the Limitation Act.Under Section 31 of the Arbitration Act, 1940, an award may be filed in any court having jurisdiction in the matter to which the reference relates. Under(4) of Section 31, where in any reference any application under the Arbitration Act has been made in a court competent to entertain it, that court alone has jurisdiction over the arbitration proceedings and all subsequent applications arising out of that reference. The High Court has held that the Subordinate Court at Tuticorin has no jurisdiction in view of the earlier orders of the High Court. The notice of the Subordinate Court is, therefore, invalid.
| 1 | 634 | 298 |
### 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:
Leave granted. The arbitration award, in the present case, pertaining to the disputes between the appellants and the respondents, was published on 10-4-1992 and was filed in the Court of Subordinate Judge at Tuticorin on 30-6-1992. The notice of filing of this award was served on the appellants on 18-7-1992. The appellants moved the High Court contending that the Subordinate Court at Tuticorin was a court without jurisdiction for the purposes of filing the award. Ultimately, the Division Bench of the Madras High Court, by its judgment and order dated 23-3-1993, held that since the arbitrator had been appointed under the orders of the High Court, no other court had any jurisdiction over the arbitration or in respect of the award therein. The High Court, however, in addition, said that in any event, under Section 24 of the Code of Civil Procedure, the Court had the power to order withdrawal of the proceedings from the Subordinate Court at Tuticorin to the High Court. The High Court, thereupon, directed that the award and the proceedings in the Subordinate Court, Tuticorin be withdrawn from that court to the High Court for disposal in accordance with law. Thereafter on 2-9-1993, the appellants received a notice of transfer of the said proceeding from the High Court. The exact contents of the notice are not before us. However, the notice pertains to the transfer of the award to the High Court and requires the appellant to pay additional court fees.The appellants have filed objections to the award in a petition to set aside the award, on 29-9-1993. By the impugned judgment and order, the High Court has held that since the petition to set aside the award has been filed more than 30 days after the date of service of the notice on the appellants, the petition/objections are barred by limitation. If the notice of filing of the award is taken as the notice served by the Subordinate Court at Tuticorin, obviously, the objections have been filed more than 30 days after the notice. However, in the present case, the Division Bench in its judgment of 23-3-1993 has clearly held that the Subordinate Court at Tuticorin had no jurisdiction to take the award on file or to consider the application for a decree in terms of the award. Thereafter, the High Court has also referred to Section 24 of the Code of Civil Procedure and directed transfer of the award and proceedings to the High Court. The order under Section 24 has been passed because the High Court was of the view that the Subordinate Court at Tuticorin has no jurisdiction. In this view of the matter, any notice issued by the Subordinate Court at Tuticorin is a notice issued by a court without jurisdiction and is not a valid notice for the purpose of Article 119(a) of the Limitation Act.Under Section 31 of the Arbitration Act, 1940, an award may be filed in any court having jurisdiction in the matter to which the reference relates. Under sub-section (4) of Section 31, where in any reference any application under the Arbitration Act has been made in a court competent to entertain it, that court alone has jurisdiction over the arbitration proceedings and all subsequent applications arising out of that reference. The High Court has held that the Subordinate Court at Tuticorin has no jurisdiction in view of the earlier orders of the High Court. The notice of the Subordinate Court is, therefore, invalid.
### Response:
1
### Explanation:
If the notice of filing of the award is taken as the notice served by the Subordinate Court at Tuticorin, obviously, the objections have been filed more than 30 days after the notice. However, in the present case, the Division Bench in its judgment ofhas clearly held that the Subordinate Court at Tuticorin had no jurisdiction to take the award on file or to consider the application for a decree in terms of the award. Thereafter, the High Court has also referred to Section 24 of the Code of Civil Procedure and directed transfer of the award and proceedings to the High Court. The order under Section 24 has been passed because the High Court was of the view that the Subordinate Court at Tuticorin has no jurisdiction. In this view of the matter, any notice issued by the Subordinate Court at Tuticorin is a notice issued by a court without jurisdiction and is not a valid notice for the purpose of Article 119(a) of the Limitation Act.Under Section 31 of the Arbitration Act, 1940, an award may be filed in any court having jurisdiction in the matter to which the reference relates. Under(4) of Section 31, where in any reference any application under the Arbitration Act has been made in a court competent to entertain it, that court alone has jurisdiction over the arbitration proceedings and all subsequent applications arising out of that reference. The High Court has held that the Subordinate Court at Tuticorin has no jurisdiction in view of the earlier orders of the High Court. The notice of the Subordinate Court is, therefore, invalid.
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M/S. Indian Drugs & Pharmaceuticals Ltd Vs. Devki Devi
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posts irrespective of the nature of service rendered by the deceased-employee. In Rani Devis case (supra) it was held that scheme regarding appointment on compassionate ground if extended to all types of casual or ad hoc employees including those who worked as apprentices cannot be justified on constitutional grounds. In Life Insurance Corporation of India v. Asha Ramchandra Ambekar (Mrs.) and Anr. (1994 (2) SCC 718) , it was pointed out that High Courts and Administrative Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulations framed in respect thereof do not cover and contemplate such appointments. It was noted in Umesh Kumar Nagpal v. State of Haryana and Ors. (1994 (4) SCC 138) , that as a rule in public service appointment should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis. But such appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased. In Smt. Sushma Gosain and Ors. v. Union of India and Ors. (1989 (4) SCC 468) , it was observed that in all claims of appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread-earner in the family. Such appointments should, therefore, be provided immediately to redeem the family in distress. The fact that the ward was a minor at the time of death of his father is no ground, unless the scheme itself envisage specifically otherwise, to state that as and when such minor becomes a major he can be appointed without any time consciousness or limit. The above view was reiterated in Phoolwati (Smt.) v. Union of India and Ors. (1991 Supp (2) SCC 689), and Union of India and Ors. v. Bhagwan Singh (1995 (6) SCC 476) . In Director of Education (Secondary) and Anr. v. Pushpendra Kumar and Ors. (1998 (5) SCC 192) , it was observed that in matter of compassionate appointment there cannot be insistence for a particular post. Out of purely humanitarian consideration and having regard to the fact that unless some source of livelihood is provided the family would not be able to make both ends meet, provisions are made for giving appointment to one of the dependants of the deceased who may be eligible for appointment. Care has, however, to be taken that provision for ground of compassionate employment which is in the nature of an exception to the general provisions does not unduly interfere with the right of those other persons who are eligible for appointment to seek appointment against the post which would have been available, but for the provision enabling appointment being made on compassionate grounds of the dependant of the deceased-employee. As it is in the nature of exception to the general provisions it cannot substitute the provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision. In State of U.P. and Ors. v. Paras Nath (1998 (2) SCC 412) , it was held that the purpose of providing employment to the dependant of a Government servant dying-in-harness in preference to anybody else is to mitigate hardship caused to the family of the deceased on account of his unexpected death while in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are Rules providing for such appointments. The above position was highlighted in Commissioner of Public Instructions and Ors. v. K.R. Vishwanath (2005 (7) SCC 206) . Additionally, in Officers and Supervisors of IDPLs case (supra) the financial condition of the appellant company had been noted in detail. No production is going on in the company since 1994. These are factors which have been completely lost sight of by the Labour Court and the High Court. Both the Labour Court and the High Court held that there was a settlement arrived at in the meeting dated 12.8.1988. On bare reading of the minutes of the meeting it is clear that there was in fact no settlement. The relevant portion reads as follows: The Union demanded that the widows/dependants of deceased employees should be given employment in the plant as was done earlier. They have written several letters in this regard but no fruitful result has come out. The widows/dependants are waiting for employment for the last 2 years and are at the verge of starvation. Till such time, the decision for their employment is received from the corporation office, the management should employ them as contract labour so that they may earn their bread and avoid starvation. Further, the management should ensure payment of minimum wages. The number of such needy widows/dependants of deceased employees is about thirteen. The management agreed to consider the Union suggestion sympathetically. On the request of Union the Management informed that this will be done in a weeks time. To provide sustenance to the family members of the deceased workmen certain job works were given. The agreements have been placed on record. The cost of the contract, the nature of the work and the time allowed have been clearly indicated in each of the contracts. It also clearly indicates the number of persons who are to be engaged for carrying out the job contract work. There was no material before the Labour Court to conclude that the contract was not a job contract and in fact employment had been given. There is no foundation for such a conclusion.
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1[ds]As was observed in State of Haryana and Ors. v. Rani Devi & Anr. (AIR 1996 SC 2445 ), it need not be pointed out that the claim of person concerned for appointment on compassionate ground is based on the premise that he was dependant on the. Strictly this claim cannot be upheld on the touchstone of Article 14 or 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative orders which can stand the test of Articles 14 and 16. Appointment on compassionate ground cannot be claimed as a matter of right.n harness Scheme cannot be made applicable to all types of posts irrespective of the nature of service rendered by the. In Rani Devis case (supra) it was held that scheme regarding appointment on compassionate ground if extended to all types of casual or ad hoc employees including those who worked as apprentices cannot be justified on constitutional grounds. In Life Insurance Corporation of India v. Asha Ramchandra Ambekar (Mrs.) and Anr. (1994 (2) SCC 718) , it was pointed out that High Courts and Administrative Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulations framed in respect thereof do not cover and contemplate such appointments. It was noted in Umesh Kumar Nagpal v. State of Haryana and Ors. (1994 (4) SCC 138) , that as a rule in public service appointment should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis. But such appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceasedAs was observed in State of Haryana and Ors. v. Rani Devi & Anr. (AIR 1996 SC 2445 ), it need not be pointed out that the claim of person concerned for appointment on compassionate ground is based on the premise that he was dependant on the. Strictly this claim cannot be upheld on the touchstone of Article 14 or 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative orders which can stand the test of Articles 14 and 16. Appointment on compassionate ground cannot be claimed as a matter of right.n harness Scheme cannot be made applicable to all types of posts irrespective of the nature of service rendered by the. In Rani Devis case (supra) it was held that scheme regarding appointment on compassionate ground if extended to all types of casual or ad hoc employees including those who worked as apprentices cannot be justified on constitutional grounds. In Life Insurance Corporation of India v. Asha Ramchandra Ambekar (Mrs.) and Anr. (1994 (2) SCC 718) , it was pointed out that High Courts and Administrative Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulations framed in respect thereof do not cover and contemplate such appointments. It was noted in Umesh Kumar Nagpal v. State of Haryana and Ors. (1994 (4) SCC 138) , that as a rule in public service appointment should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis. But such appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the
| 1 | 2,462 | 832 |
### 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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posts irrespective of the nature of service rendered by the deceased-employee. In Rani Devis case (supra) it was held that scheme regarding appointment on compassionate ground if extended to all types of casual or ad hoc employees including those who worked as apprentices cannot be justified on constitutional grounds. In Life Insurance Corporation of India v. Asha Ramchandra Ambekar (Mrs.) and Anr. (1994 (2) SCC 718) , it was pointed out that High Courts and Administrative Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulations framed in respect thereof do not cover and contemplate such appointments. It was noted in Umesh Kumar Nagpal v. State of Haryana and Ors. (1994 (4) SCC 138) , that as a rule in public service appointment should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis. But such appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased. In Smt. Sushma Gosain and Ors. v. Union of India and Ors. (1989 (4) SCC 468) , it was observed that in all claims of appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread-earner in the family. Such appointments should, therefore, be provided immediately to redeem the family in distress. The fact that the ward was a minor at the time of death of his father is no ground, unless the scheme itself envisage specifically otherwise, to state that as and when such minor becomes a major he can be appointed without any time consciousness or limit. The above view was reiterated in Phoolwati (Smt.) v. Union of India and Ors. (1991 Supp (2) SCC 689), and Union of India and Ors. v. Bhagwan Singh (1995 (6) SCC 476) . In Director of Education (Secondary) and Anr. v. Pushpendra Kumar and Ors. (1998 (5) SCC 192) , it was observed that in matter of compassionate appointment there cannot be insistence for a particular post. Out of purely humanitarian consideration and having regard to the fact that unless some source of livelihood is provided the family would not be able to make both ends meet, provisions are made for giving appointment to one of the dependants of the deceased who may be eligible for appointment. Care has, however, to be taken that provision for ground of compassionate employment which is in the nature of an exception to the general provisions does not unduly interfere with the right of those other persons who are eligible for appointment to seek appointment against the post which would have been available, but for the provision enabling appointment being made on compassionate grounds of the dependant of the deceased-employee. As it is in the nature of exception to the general provisions it cannot substitute the provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision. In State of U.P. and Ors. v. Paras Nath (1998 (2) SCC 412) , it was held that the purpose of providing employment to the dependant of a Government servant dying-in-harness in preference to anybody else is to mitigate hardship caused to the family of the deceased on account of his unexpected death while in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are Rules providing for such appointments. The above position was highlighted in Commissioner of Public Instructions and Ors. v. K.R. Vishwanath (2005 (7) SCC 206) . Additionally, in Officers and Supervisors of IDPLs case (supra) the financial condition of the appellant company had been noted in detail. No production is going on in the company since 1994. These are factors which have been completely lost sight of by the Labour Court and the High Court. Both the Labour Court and the High Court held that there was a settlement arrived at in the meeting dated 12.8.1988. On bare reading of the minutes of the meeting it is clear that there was in fact no settlement. The relevant portion reads as follows: The Union demanded that the widows/dependants of deceased employees should be given employment in the plant as was done earlier. They have written several letters in this regard but no fruitful result has come out. The widows/dependants are waiting for employment for the last 2 years and are at the verge of starvation. Till such time, the decision for their employment is received from the corporation office, the management should employ them as contract labour so that they may earn their bread and avoid starvation. Further, the management should ensure payment of minimum wages. The number of such needy widows/dependants of deceased employees is about thirteen. The management agreed to consider the Union suggestion sympathetically. On the request of Union the Management informed that this will be done in a weeks time. To provide sustenance to the family members of the deceased workmen certain job works were given. The agreements have been placed on record. The cost of the contract, the nature of the work and the time allowed have been clearly indicated in each of the contracts. It also clearly indicates the number of persons who are to be engaged for carrying out the job contract work. There was no material before the Labour Court to conclude that the contract was not a job contract and in fact employment had been given. There is no foundation for such a conclusion.
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### Explanation:
As was observed in State of Haryana and Ors. v. Rani Devi & Anr. (AIR 1996 SC 2445 ), it need not be pointed out that the claim of person concerned for appointment on compassionate ground is based on the premise that he was dependant on the. Strictly this claim cannot be upheld on the touchstone of Article 14 or 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative orders which can stand the test of Articles 14 and 16. Appointment on compassionate ground cannot be claimed as a matter of right.n harness Scheme cannot be made applicable to all types of posts irrespective of the nature of service rendered by the. In Rani Devis case (supra) it was held that scheme regarding appointment on compassionate ground if extended to all types of casual or ad hoc employees including those who worked as apprentices cannot be justified on constitutional grounds. In Life Insurance Corporation of India v. Asha Ramchandra Ambekar (Mrs.) and Anr. (1994 (2) SCC 718) , it was pointed out that High Courts and Administrative Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulations framed in respect thereof do not cover and contemplate such appointments. It was noted in Umesh Kumar Nagpal v. State of Haryana and Ors. (1994 (4) SCC 138) , that as a rule in public service appointment should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis. But such appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceasedAs was observed in State of Haryana and Ors. v. Rani Devi & Anr. (AIR 1996 SC 2445 ), it need not be pointed out that the claim of person concerned for appointment on compassionate ground is based on the premise that he was dependant on the. Strictly this claim cannot be upheld on the touchstone of Article 14 or 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative orders which can stand the test of Articles 14 and 16. Appointment on compassionate ground cannot be claimed as a matter of right.n harness Scheme cannot be made applicable to all types of posts irrespective of the nature of service rendered by the. In Rani Devis case (supra) it was held that scheme regarding appointment on compassionate ground if extended to all types of casual or ad hoc employees including those who worked as apprentices cannot be justified on constitutional grounds. In Life Insurance Corporation of India v. Asha Ramchandra Ambekar (Mrs.) and Anr. (1994 (2) SCC 718) , it was pointed out that High Courts and Administrative Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulations framed in respect thereof do not cover and contemplate such appointments. It was noted in Umesh Kumar Nagpal v. State of Haryana and Ors. (1994 (4) SCC 138) , that as a rule in public service appointment should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis. But such appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the
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Hmt Ltd. & Anr.Etc. Etc Vs. P. Subbarayudu & Ors.Etc.Etc
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any of the matters or raise any fresh demands which would involve additional financial burden on the company, other than those mentioned in Clause 13.1 above, during the currency of this settlement." 10. The employees who were no longer in service as on the date of signing/implementation of the settlement demanded that the benefit of retrospective implementation of the revised conditions of service from 1.1.1992 should be made available to them as in the case of employees in service. Since this demand was not acceded to, several of such employees moved writ petitions before the Andhra Pradesh High Court and the Karnataka High Court. It is not necessary to refer to details of various litigations between the parties on the subject as the judgments of the different learned Judges following each other took the view that the petitioners were entitled to immediate disbursement of the arrears arising on account of retrospective effect given to the settlement.11. The appellant company did not dispute its liability to make payment of arrears under the settlement, not only to the employees in service, but also to the employees who had ceased to be in service, for the period from 1.1.1992 till the date they were in employment. The only contention urged to oppose the claim was that under Clause 13 of the settlement the question of arrears for the period from 1.1.1992 to 31.03.1995 could only be based on the periodical review of the improvement in the financial performance of the company, which, according to the appellant, had not improved at all. The appellant urged that from the financial year 1992-93 to the dates on which the writ petitions were filed not only had there been no improvement in the financial performance but that its financial performance had deteriorated. The High Courts of Andhra Pradesh and Karnataka were not impressed by this contention and directed disbursement of the arrears. WE may also mention here that two such cases of individual employees where payments of arrears were directed, were brought before this Court vide Special Leave Petition (c) Nos. 18556 and 18765 of 2000 and were summarily dismissed by this Court on 24.11.2000 with the observation: "The SLPs are dismissed".12. In view of the fact that two special leave petitions were summarily dismissed, the respondents contend that all the present special leave petitions should also be dismissed. We are unable to accept this contention. We are not inclined to read the summary dismissal of the said special leave petitions as deciding any principle or question of law but merely as indicative of the disinclination of this Court to entertain the special leave petitions in two individual cases.13. Shri Rao, learned counsel for the appellant, urged that, although the appellant does not dispute its liability to disburse the arrears under the terms of the settlement dated 23rd April, 1995, the appellant seriously disputes its liability to pay such arrears at the present juncture. He contends that the timing of disbursement has been left to the discretion of the appellant management by reason of Clause 13. As to whether there has been "improvement in the financial performance of the company" is to be determined by "periodical review"; after carrying out this periodical review, the management was satisfied that there was no requisite improvement in the financial performance. Hence the appellant took the view that, for the disbursement of the arrears for the period from 1.1.1992 to the employees who were not in service, the time had not yet arrived. 14. Learned counsel on both sides have taken us through the performance highlights of the company over the financial years 1991-92 to 2000-01. We notice therefrom that from the financial year 1998-99 the financial performance of the company has shown steady improvement. The financial figures show net loss of Rs. 3657 lakhs during the year 1998-99 and net earnings Rs. 2441 lakhs during the year 2000-01. The net worth of the company rose from Rs. 2410 lakhs to Rs. 5414 lakhs during the same period. Learned counsel for the appellant company, however, attempted to focus our attention on the figures of the accumulated losses which are Rs. 139.60 lakhs in 1998-99, Rs. 436.51 lakhs in 1999-2000 and Rs. 379.99 lakhs in 2000-01. Even here, the figures show that the company was able to bring down the accumulated losses substantially in the last of the year referred to. We were also show the figures for the year 2001-02. The net earnings of this year were Rs. 1024 lakhs and the accumulated losses as on 31st March, 2002 were Rs. 368 crores. We are informed that as on 31st March, 2003 the accumulated losses would be about 403.33 crores.15. On the basis of these figures it was submitted that the time was not yet ripe to meet the liability towards disbursement of arrears under the settlement. In our view, the contention is unsound. Clause 13 does not say that the disbursement of arrears would be made only after all accumulated losses are completely wiped out. It merely says that it would be done on periodical review of the improvement in the financial performance. In our view, therefore, the appellant was not justified in taking the rigid stand of refusing to disburse any of the arrears on the ground that accumulated losses persisted. This was obviously an unreasonable stand and the High Courts were justified in exercising their writ jurisdiction in directing the appellant to make the disbursements. However, we are not satisfied that the High Court were justified in directing full disbursement of arrears at one go. WE are conscious of the fact that there has been improvement in the financial performance, yet at the same time, we are also not satisfied that the financial performance had improved to such extent that the entire liability needs to be discharged at one go. In our view, it would be necessary to give some ore breathing time to the appellant to ensure that the trend of financial improvement does not get reversed.
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1[ds]15. On the basis of these figures it was submitted that the time was not yet ripe to meet the liability towards disbursement of arrears under the settlement. In our view, the contention is unsound. Clause 13 does not say that the disbursement of arrears would be made only after all accumulated losses are completely wiped out. It merely says that it would be done on periodical review of the improvement in the financial performance. In our view, therefore, the appellant was not justified in taking the rigid stand of refusing to disburse any of the arrears on the ground that accumulated losses persisted. This was obviously an unreasonable stand and the High Courts were justified in exercising their writ jurisdiction in directing the appellant to make the disbursements. However, we are not satisfied that the High Court were justified in directing full disbursement of arrears at one go. WE are conscious of the fact that there has been improvement in the financial performance, yet at the same time, we are also not satisfied that the financial performance had improved to such extent that the entire liability needs to be discharged at one go. In our view, it would be necessary to give some ore breathing time to the appellant to ensure that the trend of financial improvement does not get reversed.
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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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any of the matters or raise any fresh demands which would involve additional financial burden on the company, other than those mentioned in Clause 13.1 above, during the currency of this settlement." 10. The employees who were no longer in service as on the date of signing/implementation of the settlement demanded that the benefit of retrospective implementation of the revised conditions of service from 1.1.1992 should be made available to them as in the case of employees in service. Since this demand was not acceded to, several of such employees moved writ petitions before the Andhra Pradesh High Court and the Karnataka High Court. It is not necessary to refer to details of various litigations between the parties on the subject as the judgments of the different learned Judges following each other took the view that the petitioners were entitled to immediate disbursement of the arrears arising on account of retrospective effect given to the settlement.11. The appellant company did not dispute its liability to make payment of arrears under the settlement, not only to the employees in service, but also to the employees who had ceased to be in service, for the period from 1.1.1992 till the date they were in employment. The only contention urged to oppose the claim was that under Clause 13 of the settlement the question of arrears for the period from 1.1.1992 to 31.03.1995 could only be based on the periodical review of the improvement in the financial performance of the company, which, according to the appellant, had not improved at all. The appellant urged that from the financial year 1992-93 to the dates on which the writ petitions were filed not only had there been no improvement in the financial performance but that its financial performance had deteriorated. The High Courts of Andhra Pradesh and Karnataka were not impressed by this contention and directed disbursement of the arrears. WE may also mention here that two such cases of individual employees where payments of arrears were directed, were brought before this Court vide Special Leave Petition (c) Nos. 18556 and 18765 of 2000 and were summarily dismissed by this Court on 24.11.2000 with the observation: "The SLPs are dismissed".12. In view of the fact that two special leave petitions were summarily dismissed, the respondents contend that all the present special leave petitions should also be dismissed. We are unable to accept this contention. We are not inclined to read the summary dismissal of the said special leave petitions as deciding any principle or question of law but merely as indicative of the disinclination of this Court to entertain the special leave petitions in two individual cases.13. Shri Rao, learned counsel for the appellant, urged that, although the appellant does not dispute its liability to disburse the arrears under the terms of the settlement dated 23rd April, 1995, the appellant seriously disputes its liability to pay such arrears at the present juncture. He contends that the timing of disbursement has been left to the discretion of the appellant management by reason of Clause 13. As to whether there has been "improvement in the financial performance of the company" is to be determined by "periodical review"; after carrying out this periodical review, the management was satisfied that there was no requisite improvement in the financial performance. Hence the appellant took the view that, for the disbursement of the arrears for the period from 1.1.1992 to the employees who were not in service, the time had not yet arrived. 14. Learned counsel on both sides have taken us through the performance highlights of the company over the financial years 1991-92 to 2000-01. We notice therefrom that from the financial year 1998-99 the financial performance of the company has shown steady improvement. The financial figures show net loss of Rs. 3657 lakhs during the year 1998-99 and net earnings Rs. 2441 lakhs during the year 2000-01. The net worth of the company rose from Rs. 2410 lakhs to Rs. 5414 lakhs during the same period. Learned counsel for the appellant company, however, attempted to focus our attention on the figures of the accumulated losses which are Rs. 139.60 lakhs in 1998-99, Rs. 436.51 lakhs in 1999-2000 and Rs. 379.99 lakhs in 2000-01. Even here, the figures show that the company was able to bring down the accumulated losses substantially in the last of the year referred to. We were also show the figures for the year 2001-02. The net earnings of this year were Rs. 1024 lakhs and the accumulated losses as on 31st March, 2002 were Rs. 368 crores. We are informed that as on 31st March, 2003 the accumulated losses would be about 403.33 crores.15. On the basis of these figures it was submitted that the time was not yet ripe to meet the liability towards disbursement of arrears under the settlement. In our view, the contention is unsound. Clause 13 does not say that the disbursement of arrears would be made only after all accumulated losses are completely wiped out. It merely says that it would be done on periodical review of the improvement in the financial performance. In our view, therefore, the appellant was not justified in taking the rigid stand of refusing to disburse any of the arrears on the ground that accumulated losses persisted. This was obviously an unreasonable stand and the High Courts were justified in exercising their writ jurisdiction in directing the appellant to make the disbursements. However, we are not satisfied that the High Court were justified in directing full disbursement of arrears at one go. WE are conscious of the fact that there has been improvement in the financial performance, yet at the same time, we are also not satisfied that the financial performance had improved to such extent that the entire liability needs to be discharged at one go. In our view, it would be necessary to give some ore breathing time to the appellant to ensure that the trend of financial improvement does not get reversed.
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### Explanation:
15. On the basis of these figures it was submitted that the time was not yet ripe to meet the liability towards disbursement of arrears under the settlement. In our view, the contention is unsound. Clause 13 does not say that the disbursement of arrears would be made only after all accumulated losses are completely wiped out. It merely says that it would be done on periodical review of the improvement in the financial performance. In our view, therefore, the appellant was not justified in taking the rigid stand of refusing to disburse any of the arrears on the ground that accumulated losses persisted. This was obviously an unreasonable stand and the High Courts were justified in exercising their writ jurisdiction in directing the appellant to make the disbursements. However, we are not satisfied that the High Court were justified in directing full disbursement of arrears at one go. WE are conscious of the fact that there has been improvement in the financial performance, yet at the same time, we are also not satisfied that the financial performance had improved to such extent that the entire liability needs to be discharged at one go. In our view, it would be necessary to give some ore breathing time to the appellant to ensure that the trend of financial improvement does not get reversed.
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M/S. Om Oil & Oilseeds Exchange Ltd., Delhi Vs. Their Workmen
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v. Its Workmen, 1960-2 Lab LJ 64: (AIR 1960 SC 1288 ), this Court has held that in the matter of retrenchment of clerical staff departure from the rule "first come, last go may not be recognised when it is sought to be justified on the ground that the workman retained has experience of a particular branch of the clerical work; and reliance was placed upon the following observations of Subba Rao, J,:"But if the preferential treatment given to juniors ignores the well recognized principle in the industrial law that "the first come, last go without any acceptable "or sound reasoning, a tribunal or an adjudicator will be well justified to hold that the action of the management is not bona fide. * * * In regard to the clerks, what is the ground of preference given by the management? It is said that junior clerks, who were retained, have experience in a particular branch of clerical work. To accept this ground of preference without more is to destroy the principle itself. It may be that the clerks entrusted with such works may continue to do the same work till a readjustment of the work is made. There is no particular or scientific skill required in one class of work rather than in another. Clerks are not specially trained to handle only a particular kind of work. Their work is easily convertible and one can replace another without any dislocation in the department.But the judgment does not enunciate a different principle. Ordinarily it is for the management to ascertain who on retrenchment should be retained in the interests of the business and the Industrial Tribunal will not interfere with the decision of the management, unless preferential treatment is actuated by mala fides. Where those retrenched and those retained are doing substantially the same kind of work and no special skill or aptitude is required for doing the work which the retained clerk is doing, preference given to the retained clerk on the ground that he has some experience in the branch may justifiably raise an inference of mala fides. Apparently in J. L. Iron and Steel Companys case, 1960-2 Lab LJ 64: (AIR 1960 SC 1288 ), " the work required to be done by the clerks retained needed no special aptitude, and the clerks retrenched could as well do the work which was done by the clerks retained. It was in those circumstances that the Court held that mere experience in a particular branch requiring no special aptitude was not sufficient to justify departure from the rule "first come, last go.8. In the present case the four clerks retained had, beside, experience, special skill and aptitude in the particular branch of the business of the appellant they were attending to and the management had retained them because of that skill or aptitude. The Labour Court inferred mala fides merely because the management departed from the rule "first come, last go. Whether the management in departing from the rule has acted mala fide, must depend upon the circumstances of the case; it cannot be inferred merely from departure from the rule.9. We may turn to the cases of the three peons, Jai Narain, Budhpal Singh and Laljimal. Retention of Jai Narain has been upheld by the Labour Court, and nothing more need be said about him. The other two peons are Budhpal Singh and Laljimal who were working as chowkidars. They are said to be "the senior-most chowkidars, and there is no evidence to show that there were in the employment of the Company other persons who could have worked as chowkidars. Peons Budhpal Singh and Laljimal were retained because they were the "seniormost chowkidars. Retention of the "seniormost chowkidars would not be interfered with by the Tribunal in the absence of clear proof of mala fides. It cannot be assumed without more that every peon can do the work of a chowkidar. The management may ordinarily require the chowkidar to possess good physique and ability to maintain watch over the building and its assets. There is no evidence that the two peons Tara Shankar and Om Prakash had ever worked as chowkidars or were suitable for work as chowkidars. The order of reinstatement of Tara Shanker and Om Prakash will stand vacated.10. The second part of the order directing that clerks from Nos. 4 to 14 and peons from Nos. 18 to 23 in the seniority list, shall be entitled in addition to the retenchment compensation already paid to them 50 per cent of the wages as compensation for the period they remained unemployed is wholly conceded before the Labour Court. It was also conceded that for carrying on the business of the appellant after imposition of the ban by the Central Government, not more than seven employees were required. If the management was entitled to retrench 30 workmen and did so after paying wages for the period of notice and retrenchment compensation, we fail to appreciate the grounds on which an order for payment of 50 per cent of the wages in addition to retrenchment compensation may be made. Retrenchment compensation is paid as solarium for termination of service resulting in unemployment, and if that compensation be paid there can be no ground for awarding compensation in addition to statutory retrenchment compensation. If the Industrial Tribunal comes to the conclusion that an order of retrenchment was not properly made, and the Tribunal directs reinstatement an order for payment of remuneration for the period during which the employee remained unemployed, or a part thereof may appropriately be made. That is because the employee who had been retrenched for no fault of his had been improperly kept out of employment, and was prevented from earning his wages. But where retrenchments has been properly made and that order has not been set aside, we are not aware of any principle which may justify an order directing payment of compensation to employees properly retrenched in addition to the retrenchment compensation statutorily payable.
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1[ds]5. The management of the appellant has recorded a resolution which sets out the reasons for retention of the employees Ram Lal Sethi, Jagdish Pershad, Kidar Nath Thukral, Om Prakash Juneja, Jai Narain, Budhpal Singh and Laljimal. About Ram Lal Sethi the Company has stated that he was looking "after the accounts and income-tax cases of the Company and he was the only Accountant in the service of the Company and the senior-most employee in the Accounts Section. The Labour Court has upheld his retention and nothing more need be said about him. Jagdish Pershad was, it was stated, looking "after the share work, collection of building rent and Court work and the realisation of rents and that he was "in charge of the share work for the last many years. The Labour Court was of the view that a clerk employed in general office duties may be styled as a general assistant, and that the posts of clerks are interchangeable and since clerks are not trained to handle any particular kind of work, the reasons given by the management for retaining this and other clerks cannot be accepted. However, there was not in the employment of the Company any other clerk who could competently handle "share work and attend to "court work. Clerical work ordinarily does not require specialisation and clerks may be transferred from one department to another without detriment to the business. But if a clerk has been working in a branch of the business and he is shown to possess special aptitude for a particular duty, performance of which requires application and experience, the management may in the interests of the business while retrenching others retain him even if he is junior to others. The rule of "first come, last go is intended to secure an equitable treatment to the employees when, having regard to the exigencies of the business, it is necessary to retrench some employees. But in the application of the rule the interests of the business cannot be overlooked. The rule has to be applied where other things are equal. The management of the business must act fairly to the employees; where, however, the management bona fide retains staff possessing special aptitude in the interests of the business, it cannot be assumed to have acted unfairly merely because the rule "first come, last go is not observed. If retention of a clerical employee is regarded as necessary by the management in the interests of the business, that opinion cannot be discarded merely on the ground that the clerk concerned is not the senior-most. There is nothing by the record to show that there was, among the senior employees, a clerk possessing the aptitude which Jagdish Perashad possessed. Kidar Nath Thakural was doing "typing work and he was retained because he was the only typist with the Company. Our attention has not been invited to any evidence that there were other typists who were senior to him and they had been retrenched. A typist is undoubtedly a clerk in a business concern, but that does not mean that every clerk, unless specially trained, can become a competent typist. Om Prakash Juneja was retained because he was looking after the records of the Company and was "fully conversant as to where different type of records were "lying, and that this employee was doing the work satisfactorily. A record-keepers work in a business cannot be performed efficiently without special training or long experience. It would be difficult to hold that in retrenching employees, if the management retains an efficient record keeper in preference to a senior clerk who has no training or experience in record-keeping, the management acts mala fide or improperly, or perpetrates an unfair labour practice.6. The Labour Court was of the view that retention of junior clerks in service could not be sustained on the ground that they had gained experience in a particular branch of clerical work. To accept that ground of preference, observed the Labour Court, was to destroy the rule "first come, last go itself, since clerks are not specially trained to handle only a particular kind of work, and their work is easily convertible and one can replace another without dislocation in the department. For ordinary clerical work this is undoubtedly true, but even among the clerical staff if a degree of specialisation is necessary for discharging clerical duties efficiently, retention of a junior clerk on the ground that the duty performed by him requires experience, and aptitude, will not expose the management to a charge of mala fides, or perpetration of an unfair labour practice.In the present case the four clerks retained had, beside, experience, special skill and aptitude in the particular branch of the business of the appellant they were attending to and the management had retained them because of that skill or aptitude. The Labour Court inferred mala fides merely because the management departed from the rule "first come, last go. Whether the management in departing from the rule has acted mala fide, must depend upon the circumstances of the case; it cannot be inferred merely from departure from the rule.9. We may turn to the cases of the three peons, Jai Narain, Budhpal Singh and Laljimal. Retention of Jai Narain has been upheld by the Labour Court, and nothing more need be said about him. The other two peons are Budhpal Singh and Laljimal who were working as chowkidars. They are said to be "the senior-most chowkidars, and there is no evidence to show that there were in the employment of the Company other persons who could have worked as chowkidars. Peons Budhpal Singh and Laljimal were retained because they were the "seniormost chowkidars. Retention of the "seniormost chowkidars would not be interfered with by the Tribunal in the absence of clear proof of mala fides. It cannot be assumed without more that every peon can do the work of a chowkidar. The management may ordinarily require the chowkidar to possess good physique and ability to maintain watch over the building and its assets. There is no evidence that the two peons Tara Shankar and Om Prakash had ever worked as chowkidars or were suitable for work as chowkidars. The order of reinstatement of Tara Shanker and Om Prakash will stand vacated.10. The second part of the order directing that clerks from Nos. 4 to 14 and peons from Nos. 18 to 23 in the seniority list, shall be entitled in addition to the retenchment compensation already paid to them 50 per cent of the wages as compensation for the period they remained unemployed is wholly conceded before the Labour Court. It was also conceded that for carrying on the business of the appellant after imposition of the ban by the Central Government, not more than seven employees were required. If the management was entitled to retrench 30 workmen and did so after paying wages for the period of notice and retrenchment compensation, we fail to appreciate the grounds on which an order for payment of 50 per cent of the wages in addition to retrenchment compensation may be made. Retrenchment compensation is paid as solarium for termination of service resulting in unemployment, and if that compensation be paid there can be no ground for awarding compensation in addition to statutory retrenchment compensation. If the Industrial Tribunal comes to the conclusion that an order of retrenchment was not properly made, and the Tribunal directs reinstatement an order for payment of remuneration for the period during which the employee remained unemployed, or a part thereof may appropriately be made. That is because the employee who had been retrenched for no fault of his had been improperly kept out of employment, and was prevented from earning his wages. But where retrenchments has been properly made and that order has not been set aside, we are not aware of any principle which may justify an order directing payment of compensation to employees properly retrenched in addition to the retrenchment compensation statutorily payable.It is an accepted principle of industrial law that in ordering retrenchment ordinarily the management should commence with the latest recruit, and progressively retrench employees higher up in the list of seniority. But the rule is not immutable, and for valid reasons may be departed from. It was observed by this Court in Swadesamitran Ltd., Madras v. Their Workmen,Lab LJ 504: (AIR 1960 SC 762 ), that if a case for retrenchment is made out, it would normally be for the employer to decide which of the employees should be retrenched; but there can be no doubt that the ordinary industrial rule of retrenchment is "first come, last go, and where other things are equal, this rule has to be followed by the employer in effectingTribunal has to determine in each case whether the management has in ordering retrenchment acted fairly and properly and not with any ulterior motive: it cannot assume from mere departure from the rule that the management was actuated by improper motives or that the management had acted in a manner amounting to an unfair labour practice. Nor has the Tribunal authority to sit in appeal over the decision of the management if for valid and justifiable reasons the management has departed from the rule that the senior employee may be retrenched before his junior in employment.
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### 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:
v. Its Workmen, 1960-2 Lab LJ 64: (AIR 1960 SC 1288 ), this Court has held that in the matter of retrenchment of clerical staff departure from the rule "first come, last go may not be recognised when it is sought to be justified on the ground that the workman retained has experience of a particular branch of the clerical work; and reliance was placed upon the following observations of Subba Rao, J,:"But if the preferential treatment given to juniors ignores the well recognized principle in the industrial law that "the first come, last go without any acceptable "or sound reasoning, a tribunal or an adjudicator will be well justified to hold that the action of the management is not bona fide. * * * In regard to the clerks, what is the ground of preference given by the management? It is said that junior clerks, who were retained, have experience in a particular branch of clerical work. To accept this ground of preference without more is to destroy the principle itself. It may be that the clerks entrusted with such works may continue to do the same work till a readjustment of the work is made. There is no particular or scientific skill required in one class of work rather than in another. Clerks are not specially trained to handle only a particular kind of work. Their work is easily convertible and one can replace another without any dislocation in the department.But the judgment does not enunciate a different principle. Ordinarily it is for the management to ascertain who on retrenchment should be retained in the interests of the business and the Industrial Tribunal will not interfere with the decision of the management, unless preferential treatment is actuated by mala fides. Where those retrenched and those retained are doing substantially the same kind of work and no special skill or aptitude is required for doing the work which the retained clerk is doing, preference given to the retained clerk on the ground that he has some experience in the branch may justifiably raise an inference of mala fides. Apparently in J. L. Iron and Steel Companys case, 1960-2 Lab LJ 64: (AIR 1960 SC 1288 ), " the work required to be done by the clerks retained needed no special aptitude, and the clerks retrenched could as well do the work which was done by the clerks retained. It was in those circumstances that the Court held that mere experience in a particular branch requiring no special aptitude was not sufficient to justify departure from the rule "first come, last go.8. In the present case the four clerks retained had, beside, experience, special skill and aptitude in the particular branch of the business of the appellant they were attending to and the management had retained them because of that skill or aptitude. The Labour Court inferred mala fides merely because the management departed from the rule "first come, last go. Whether the management in departing from the rule has acted mala fide, must depend upon the circumstances of the case; it cannot be inferred merely from departure from the rule.9. We may turn to the cases of the three peons, Jai Narain, Budhpal Singh and Laljimal. Retention of Jai Narain has been upheld by the Labour Court, and nothing more need be said about him. The other two peons are Budhpal Singh and Laljimal who were working as chowkidars. They are said to be "the senior-most chowkidars, and there is no evidence to show that there were in the employment of the Company other persons who could have worked as chowkidars. Peons Budhpal Singh and Laljimal were retained because they were the "seniormost chowkidars. Retention of the "seniormost chowkidars would not be interfered with by the Tribunal in the absence of clear proof of mala fides. It cannot be assumed without more that every peon can do the work of a chowkidar. The management may ordinarily require the chowkidar to possess good physique and ability to maintain watch over the building and its assets. There is no evidence that the two peons Tara Shankar and Om Prakash had ever worked as chowkidars or were suitable for work as chowkidars. The order of reinstatement of Tara Shanker and Om Prakash will stand vacated.10. The second part of the order directing that clerks from Nos. 4 to 14 and peons from Nos. 18 to 23 in the seniority list, shall be entitled in addition to the retenchment compensation already paid to them 50 per cent of the wages as compensation for the period they remained unemployed is wholly conceded before the Labour Court. It was also conceded that for carrying on the business of the appellant after imposition of the ban by the Central Government, not more than seven employees were required. If the management was entitled to retrench 30 workmen and did so after paying wages for the period of notice and retrenchment compensation, we fail to appreciate the grounds on which an order for payment of 50 per cent of the wages in addition to retrenchment compensation may be made. Retrenchment compensation is paid as solarium for termination of service resulting in unemployment, and if that compensation be paid there can be no ground for awarding compensation in addition to statutory retrenchment compensation. If the Industrial Tribunal comes to the conclusion that an order of retrenchment was not properly made, and the Tribunal directs reinstatement an order for payment of remuneration for the period during which the employee remained unemployed, or a part thereof may appropriately be made. That is because the employee who had been retrenched for no fault of his had been improperly kept out of employment, and was prevented from earning his wages. But where retrenchments has been properly made and that order has not been set aside, we are not aware of any principle which may justify an order directing payment of compensation to employees properly retrenched in addition to the retrenchment compensation statutorily payable.
### Response:
1
### Explanation:
employee was doing the work satisfactorily. A record-keepers work in a business cannot be performed efficiently without special training or long experience. It would be difficult to hold that in retrenching employees, if the management retains an efficient record keeper in preference to a senior clerk who has no training or experience in record-keeping, the management acts mala fide or improperly, or perpetrates an unfair labour practice.6. The Labour Court was of the view that retention of junior clerks in service could not be sustained on the ground that they had gained experience in a particular branch of clerical work. To accept that ground of preference, observed the Labour Court, was to destroy the rule "first come, last go itself, since clerks are not specially trained to handle only a particular kind of work, and their work is easily convertible and one can replace another without dislocation in the department. For ordinary clerical work this is undoubtedly true, but even among the clerical staff if a degree of specialisation is necessary for discharging clerical duties efficiently, retention of a junior clerk on the ground that the duty performed by him requires experience, and aptitude, will not expose the management to a charge of mala fides, or perpetration of an unfair labour practice.In the present case the four clerks retained had, beside, experience, special skill and aptitude in the particular branch of the business of the appellant they were attending to and the management had retained them because of that skill or aptitude. The Labour Court inferred mala fides merely because the management departed from the rule "first come, last go. Whether the management in departing from the rule has acted mala fide, must depend upon the circumstances of the case; it cannot be inferred merely from departure from the rule.9. We may turn to the cases of the three peons, Jai Narain, Budhpal Singh and Laljimal. Retention of Jai Narain has been upheld by the Labour Court, and nothing more need be said about him. The other two peons are Budhpal Singh and Laljimal who were working as chowkidars. They are said to be "the senior-most chowkidars, and there is no evidence to show that there were in the employment of the Company other persons who could have worked as chowkidars. Peons Budhpal Singh and Laljimal were retained because they were the "seniormost chowkidars. Retention of the "seniormost chowkidars would not be interfered with by the Tribunal in the absence of clear proof of mala fides. It cannot be assumed without more that every peon can do the work of a chowkidar. The management may ordinarily require the chowkidar to possess good physique and ability to maintain watch over the building and its assets. There is no evidence that the two peons Tara Shankar and Om Prakash had ever worked as chowkidars or were suitable for work as chowkidars. The order of reinstatement of Tara Shanker and Om Prakash will stand vacated.10. The second part of the order directing that clerks from Nos. 4 to 14 and peons from Nos. 18 to 23 in the seniority list, shall be entitled in addition to the retenchment compensation already paid to them 50 per cent of the wages as compensation for the period they remained unemployed is wholly conceded before the Labour Court. It was also conceded that for carrying on the business of the appellant after imposition of the ban by the Central Government, not more than seven employees were required. If the management was entitled to retrench 30 workmen and did so after paying wages for the period of notice and retrenchment compensation, we fail to appreciate the grounds on which an order for payment of 50 per cent of the wages in addition to retrenchment compensation may be made. Retrenchment compensation is paid as solarium for termination of service resulting in unemployment, and if that compensation be paid there can be no ground for awarding compensation in addition to statutory retrenchment compensation. If the Industrial Tribunal comes to the conclusion that an order of retrenchment was not properly made, and the Tribunal directs reinstatement an order for payment of remuneration for the period during which the employee remained unemployed, or a part thereof may appropriately be made. That is because the employee who had been retrenched for no fault of his had been improperly kept out of employment, and was prevented from earning his wages. But where retrenchments has been properly made and that order has not been set aside, we are not aware of any principle which may justify an order directing payment of compensation to employees properly retrenched in addition to the retrenchment compensation statutorily payable.It is an accepted principle of industrial law that in ordering retrenchment ordinarily the management should commence with the latest recruit, and progressively retrench employees higher up in the list of seniority. But the rule is not immutable, and for valid reasons may be departed from. It was observed by this Court in Swadesamitran Ltd., Madras v. Their Workmen,Lab LJ 504: (AIR 1960 SC 762 ), that if a case for retrenchment is made out, it would normally be for the employer to decide which of the employees should be retrenched; but there can be no doubt that the ordinary industrial rule of retrenchment is "first come, last go, and where other things are equal, this rule has to be followed by the employer in effectingTribunal has to determine in each case whether the management has in ordering retrenchment acted fairly and properly and not with any ulterior motive: it cannot assume from mere departure from the rule that the management was actuated by improper motives or that the management had acted in a manner amounting to an unfair labour practice. Nor has the Tribunal authority to sit in appeal over the decision of the management if for valid and justifiable reasons the management has departed from the rule that the senior employee may be retrenched before his junior in employment.
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Kuppala Obul Reddy Vs. Bonala Venpata Narayana Reddy (Dead) Through Lrs
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of gift by Thimma Reddy in favour of his wife Naramma to be a conveyance of half share of Thimma Reddy in favour of his son Yella Reddy. The conduct of Yella Reddy in entering into the deed of exchange with his wife Venkata Lakshamamma furnishes clear proof that the properties were not joint family properties and that the gift executed by his father Thimma Reddy in favour of his wife Naramma and the gift executed by Naramma in favour of her granddaughter and also daughter-in-law Venkata Lakshamamma, the wife of Yella Reddy with whom she entered into an exchange deed, were valid and Venkata lakshamamma had acquired title to the properties gifted to her by Naramma. The clear findings recorded by the Lower Appellate Court after the further hearing on the basis of the order of remand of High Court are that the deed of exchange had in fact, been acted upon and on the basis of the deed of exchange parties had taken possession and Venkata Lakshamamma remained in possession of the remaining properties after execution of the deed of exchange and also came into possession of the portion of the house which was allotted to her as a result of the exchange between herself and her husband Yella Reddy. These clear findings went unchallenged and were final. The High Court went wrong in ignoring these findings on the ground that by mere recognition Venkata Lakshamamma did not get any title to the property and the mere fact that the parties were under the impression that the properties belonged to Venkata Lakshamamma could not confer upon her any title under the law. Apart from the question that there were no pleadings as to the properties being joint family properties and no issue as to joint family had been raised and there was no proper evidence to make out any case of the properties being joint family properties, the High Court should have appreciated that the deed of exchange by and between Yella Reddy and his wife Venkata Lakshamamma which was acted upon between the parties established that the properties could not be and were not joint family properties.16. We have earlier set out the deed of gift executed by Thimma Reddy in favour of his wife Naramma. The document clearly establishes that the properties were gifted by Thimma Reddy to his wife Naramma absolutely. This document cannot be interpreted to construe a trust in favour of Yella Reddy and cannot be construed by any process of construction to be a conveyance in respect of the donors half share to the son Yella Reddy. The mere reference to the son in the recital of the document does not indicate any intention of creating any trust or of making any conveyance of the properties in favour of the son. The recital only indicates that as Naramma was complaining that her husband Thimma Reddy who had taken a second wife was showing greater affection for the second wife and as Naramma who had a son wanted to be suitably provided, the deed of gift was was being executed by Thimma Reddy. The recital only indicates the circumstances which prompted Thimma Reddy to execute the deed of gift. The document clearly and unequivocally shows that this was a deed of gift in favour of the wife and by the document the properties mentioned in the deed of gift were being given to Naramma absolutely. We have no hesitation in coming to the conclusion that the deed of gift executed by Thimma Reddy in favour of his wife Naramma was a valid deed of gift and under this deed of gift Naramma acquired full and complete title to the properties mentioned in the deed of gift. As Naramma had perfect title in the properties gifted to her by her husband and she was the full owner of the said properties, she was perfectly competent to make gift of the said properties to her granddaughter who also happened to be her daughter-in-law, Venkata Lakshamamma. The facts and circumstances of the case indicate that Yella Reddy was frittering away the various other properties which had come to him from his father and were also not pulling on very well with his wife Venkata Lakshamamma who was also the granddaughter of Naramma (daughters daughter), Naramma wanted suitable provision to be made for Venkata Lakshamamma. Venkata Lakshamamma, therefor, became complete owner of the properties gifted to her by Naramma and as full owner of the properties she was free to deal with and dispose of the same in any manner she chose. Asserting and exercising her right of ownership she had executed the deed of exchange with her husband, transferring part of the properties for obtaining the portion of the house from her husband and retaining the other properties which she subsequently sold to the appellant. Venkata Lakshamamma as true owner of the properties for obtaining the portion of the house from her husband and retaining by her out of the properties gifted to her by Naramma after transferring a portion thereof to the husband in exchange of the portion of the house, could and did validly sell the remaining properties to the appellant; and the appellant, therefore, acquired proper title to the properties which were sold to him by Venkata Lakshamamma and which were mentioned in Schedule B to the plaint. As in our view Venkata Lakshamamma had proper title to the properties which she could and did lawfully and validly transfer to the appellant by the sale-deed executed by her in favour of the appellant, the appellant and acquired proper title to these properties and had become the lawful owner thereof. In that view of the matter it does not become necessary for us to consider whether Yella Reddy by entering into the deed of exchange became estopped from challenging the validity of the title of his wife Venkata Lakshamamma and the respondent who seeks to drive title from Yella Reddy, is also so estopped.
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1[ds]15. We find considerable force in the submissions made by the learned counsel for the appellant. No case is made out in the pleadings with regard to the properties gifted by Thimma Reddy to his wife Naramma being joint family properties. No issue with regard to the properties being joint family properties was raised and no such issue could possibly have been raised in the absence of any pleading. The evidence of Yella Reddy in the suit does not mention that the properties gifted by his father to his mother under the deed of gift belonged to the joint family. In the absence of any pleading and any issue and further in the absence of any proper evidence, the view expressed by the learned Judge of the High Court that the properties were joint family properties is clearly unwarranted. There may be presumption that there is a Hindu joint family but there can be no presumption that the joint family possesses joint family properties. The findings of the Lower Appellate Court that the deed of gift executed by Thimma Reddy in favour of his wife Naramma "should be regarded as conveyance of the fathers half share in favour of the son who is also entitled to half share of A Schedule properties" accepted and approved by the High Court in its judgment is clearly erroneous. It is indeed difficult to understand and appreciate how the Lower Appellate Court and the High Court could construe a clear deed of gift by Thimma Reddy in favour of his wife Naramma to be a conveyance of half share of Thimma Reddy in favour of his son Yella Reddy. The conduct of Yella Reddy in entering into the deed of exchange with his wife Venkata Lakshamamma furnishes clear proof that the properties were not joint family properties and that the gift executed by his father Thimma Reddy in favour of his wife Naramma and the gift executed by Naramma in favour of her granddaughter and alsoVenkata Lakshamamma, the wife of Yella Reddy with whom she entered into an exchange deed, were valid and Venkata lakshamamma had acquired title to the properties gifted to her by Naramma. The clear findings recorded by the Lower Appellate Court after the further hearing on the basis of the order of remand of High Court are that the deed of exchange had in fact, been acted upon and on the basis of the deed of exchange parties had taken possession and Venkata Lakshamamma remained in possession of the remaining properties after execution of the deed of exchange and also came into possession of the portion of the house which was allotted to her as a result of the exchange between herself and her husband Yella Reddy. These clear findings went unchallenged and were final. The High Court went wrong in ignoring these findings on the ground that by mere recognition Venkata Lakshamamma did not get any title to the property and the mere fact that the parties were under the impression that the properties belonged to Venkata Lakshamamma could not confer upon her any title under the law. Apart from the question that there were no pleadings as to the properties being joint family properties and no issue as to joint family had been raised and there was no proper evidence to make out any case of the properties being joint family properties, the High Court should have appreciated that the deed of exchange by and between Yella Reddy and his wife Venkata Lakshamamma which was acted upon between the parties established that the properties could not be and were not joint family properties.16. We have earlier set out the deed of gift executed by Thimma Reddy in favour of his wife Naramma. The document clearly establishes that the properties were gifted by Thimma Reddy to his wife Naramma absolutely. This document cannot be interpreted to construe a trust in favour of Yella Reddy and cannot be construed by any process of construction to be a conveyance in respect of the donors half share to the son Yella Reddy. The mere reference to the son in the recital of the document does not indicate any intention of creating any trust or of making any conveyance of the properties in favour of the son. The recital only indicates that as Naramma was complaining that her husband Thimma Reddy who had taken a second wife was showing greater affection for the second wife and as Naramma who had a son wanted to be suitably provided, the deed of gift was was being executed by Thimma Reddy. The recital only indicates the circumstances which prompted Thimma Reddy to execute the deed of gift. The document clearly and unequivocally shows that this was a deed of gift in favour of the wife and by the document the properties mentioned in the deed of gift were being given to Naramma absolutely. We have no hesitation in coming to the conclusion that the deed of gift executed by Thimma Reddy in favour of his wife Naramma was a valid deed of gift and under this deed of gift Naramma acquired full and complete title to the properties mentioned in the deed of gift. As Naramma had perfect title in the properties gifted to her by her husband and she was the full owner of the said properties, she was perfectly competent to make gift of the said properties to her granddaughter who also happened to be herVenkata Lakshamamma. The facts and circumstances of the case indicate that Yella Reddy was frittering away the various other properties which had come to him from his father and were also not pulling on very well with his wife Venkata Lakshamamma who was also the granddaughter of Naramma (daughters daughter), Naramma wanted suitable provision to be made for Venkata Lakshamamma. Venkata Lakshamamma, therefor, became complete owner of the properties gifted to her by Naramma and as full owner of the properties she was free to deal with and dispose of the same in any manner she chose. Asserting and exercising her right of ownership she had executed the deed of exchange with her husband, transferring part of the properties for obtaining the portion of the house from her husband and retaining the other properties which she subsequently sold to the appellant. Venkata Lakshamamma as true owner of the properties for obtaining the portion of the house from her husband and retaining by her out of the properties gifted to her by Naramma after transferring a portion thereof to the husband in exchange of the portion of the house, could and did validly sell the remaining properties to the appellant; and the appellant, therefore, acquired proper title to the properties which were sold to him by Venkata Lakshamamma and which were mentioned in Schedule B to the plaint. As in our view Venkata Lakshamamma had proper title to the properties which she could and did lawfully and validly transfer to the appellant by theexecuted by her in favour of the appellant, the appellant and acquired proper title to these properties and had become the lawful owner thereof. In that view of the matter it does not become necessary for us to consider whether Yella Reddy by entering into the deed of exchange became estopped from challenging the validity of the title of his wife Venkata Lakshamamma and the respondent who seeks to drive title from Yella Reddy, is also so estopped.
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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.
### Input:
of gift by Thimma Reddy in favour of his wife Naramma to be a conveyance of half share of Thimma Reddy in favour of his son Yella Reddy. The conduct of Yella Reddy in entering into the deed of exchange with his wife Venkata Lakshamamma furnishes clear proof that the properties were not joint family properties and that the gift executed by his father Thimma Reddy in favour of his wife Naramma and the gift executed by Naramma in favour of her granddaughter and also daughter-in-law Venkata Lakshamamma, the wife of Yella Reddy with whom she entered into an exchange deed, were valid and Venkata lakshamamma had acquired title to the properties gifted to her by Naramma. The clear findings recorded by the Lower Appellate Court after the further hearing on the basis of the order of remand of High Court are that the deed of exchange had in fact, been acted upon and on the basis of the deed of exchange parties had taken possession and Venkata Lakshamamma remained in possession of the remaining properties after execution of the deed of exchange and also came into possession of the portion of the house which was allotted to her as a result of the exchange between herself and her husband Yella Reddy. These clear findings went unchallenged and were final. The High Court went wrong in ignoring these findings on the ground that by mere recognition Venkata Lakshamamma did not get any title to the property and the mere fact that the parties were under the impression that the properties belonged to Venkata Lakshamamma could not confer upon her any title under the law. Apart from the question that there were no pleadings as to the properties being joint family properties and no issue as to joint family had been raised and there was no proper evidence to make out any case of the properties being joint family properties, the High Court should have appreciated that the deed of exchange by and between Yella Reddy and his wife Venkata Lakshamamma which was acted upon between the parties established that the properties could not be and were not joint family properties.16. We have earlier set out the deed of gift executed by Thimma Reddy in favour of his wife Naramma. The document clearly establishes that the properties were gifted by Thimma Reddy to his wife Naramma absolutely. This document cannot be interpreted to construe a trust in favour of Yella Reddy and cannot be construed by any process of construction to be a conveyance in respect of the donors half share to the son Yella Reddy. The mere reference to the son in the recital of the document does not indicate any intention of creating any trust or of making any conveyance of the properties in favour of the son. The recital only indicates that as Naramma was complaining that her husband Thimma Reddy who had taken a second wife was showing greater affection for the second wife and as Naramma who had a son wanted to be suitably provided, the deed of gift was was being executed by Thimma Reddy. The recital only indicates the circumstances which prompted Thimma Reddy to execute the deed of gift. The document clearly and unequivocally shows that this was a deed of gift in favour of the wife and by the document the properties mentioned in the deed of gift were being given to Naramma absolutely. We have no hesitation in coming to the conclusion that the deed of gift executed by Thimma Reddy in favour of his wife Naramma was a valid deed of gift and under this deed of gift Naramma acquired full and complete title to the properties mentioned in the deed of gift. As Naramma had perfect title in the properties gifted to her by her husband and she was the full owner of the said properties, she was perfectly competent to make gift of the said properties to her granddaughter who also happened to be her daughter-in-law, Venkata Lakshamamma. The facts and circumstances of the case indicate that Yella Reddy was frittering away the various other properties which had come to him from his father and were also not pulling on very well with his wife Venkata Lakshamamma who was also the granddaughter of Naramma (daughters daughter), Naramma wanted suitable provision to be made for Venkata Lakshamamma. Venkata Lakshamamma, therefor, became complete owner of the properties gifted to her by Naramma and as full owner of the properties she was free to deal with and dispose of the same in any manner she chose. Asserting and exercising her right of ownership she had executed the deed of exchange with her husband, transferring part of the properties for obtaining the portion of the house from her husband and retaining the other properties which she subsequently sold to the appellant. Venkata Lakshamamma as true owner of the properties for obtaining the portion of the house from her husband and retaining by her out of the properties gifted to her by Naramma after transferring a portion thereof to the husband in exchange of the portion of the house, could and did validly sell the remaining properties to the appellant; and the appellant, therefore, acquired proper title to the properties which were sold to him by Venkata Lakshamamma and which were mentioned in Schedule B to the plaint. As in our view Venkata Lakshamamma had proper title to the properties which she could and did lawfully and validly transfer to the appellant by the sale-deed executed by her in favour of the appellant, the appellant and acquired proper title to these properties and had become the lawful owner thereof. In that view of the matter it does not become necessary for us to consider whether Yella Reddy by entering into the deed of exchange became estopped from challenging the validity of the title of his wife Venkata Lakshamamma and the respondent who seeks to drive title from Yella Reddy, is also so estopped.
### Response:
1
### Explanation:
Court could construe a clear deed of gift by Thimma Reddy in favour of his wife Naramma to be a conveyance of half share of Thimma Reddy in favour of his son Yella Reddy. The conduct of Yella Reddy in entering into the deed of exchange with his wife Venkata Lakshamamma furnishes clear proof that the properties were not joint family properties and that the gift executed by his father Thimma Reddy in favour of his wife Naramma and the gift executed by Naramma in favour of her granddaughter and alsoVenkata Lakshamamma, the wife of Yella Reddy with whom she entered into an exchange deed, were valid and Venkata lakshamamma had acquired title to the properties gifted to her by Naramma. The clear findings recorded by the Lower Appellate Court after the further hearing on the basis of the order of remand of High Court are that the deed of exchange had in fact, been acted upon and on the basis of the deed of exchange parties had taken possession and Venkata Lakshamamma remained in possession of the remaining properties after execution of the deed of exchange and also came into possession of the portion of the house which was allotted to her as a result of the exchange between herself and her husband Yella Reddy. These clear findings went unchallenged and were final. The High Court went wrong in ignoring these findings on the ground that by mere recognition Venkata Lakshamamma did not get any title to the property and the mere fact that the parties were under the impression that the properties belonged to Venkata Lakshamamma could not confer upon her any title under the law. Apart from the question that there were no pleadings as to the properties being joint family properties and no issue as to joint family had been raised and there was no proper evidence to make out any case of the properties being joint family properties, the High Court should have appreciated that the deed of exchange by and between Yella Reddy and his wife Venkata Lakshamamma which was acted upon between the parties established that the properties could not be and were not joint family properties.16. We have earlier set out the deed of gift executed by Thimma Reddy in favour of his wife Naramma. The document clearly establishes that the properties were gifted by Thimma Reddy to his wife Naramma absolutely. This document cannot be interpreted to construe a trust in favour of Yella Reddy and cannot be construed by any process of construction to be a conveyance in respect of the donors half share to the son Yella Reddy. The mere reference to the son in the recital of the document does not indicate any intention of creating any trust or of making any conveyance of the properties in favour of the son. The recital only indicates that as Naramma was complaining that her husband Thimma Reddy who had taken a second wife was showing greater affection for the second wife and as Naramma who had a son wanted to be suitably provided, the deed of gift was was being executed by Thimma Reddy. The recital only indicates the circumstances which prompted Thimma Reddy to execute the deed of gift. The document clearly and unequivocally shows that this was a deed of gift in favour of the wife and by the document the properties mentioned in the deed of gift were being given to Naramma absolutely. We have no hesitation in coming to the conclusion that the deed of gift executed by Thimma Reddy in favour of his wife Naramma was a valid deed of gift and under this deed of gift Naramma acquired full and complete title to the properties mentioned in the deed of gift. As Naramma had perfect title in the properties gifted to her by her husband and she was the full owner of the said properties, she was perfectly competent to make gift of the said properties to her granddaughter who also happened to be herVenkata Lakshamamma. The facts and circumstances of the case indicate that Yella Reddy was frittering away the various other properties which had come to him from his father and were also not pulling on very well with his wife Venkata Lakshamamma who was also the granddaughter of Naramma (daughters daughter), Naramma wanted suitable provision to be made for Venkata Lakshamamma. Venkata Lakshamamma, therefor, became complete owner of the properties gifted to her by Naramma and as full owner of the properties she was free to deal with and dispose of the same in any manner she chose. Asserting and exercising her right of ownership she had executed the deed of exchange with her husband, transferring part of the properties for obtaining the portion of the house from her husband and retaining the other properties which she subsequently sold to the appellant. Venkata Lakshamamma as true owner of the properties for obtaining the portion of the house from her husband and retaining by her out of the properties gifted to her by Naramma after transferring a portion thereof to the husband in exchange of the portion of the house, could and did validly sell the remaining properties to the appellant; and the appellant, therefore, acquired proper title to the properties which were sold to him by Venkata Lakshamamma and which were mentioned in Schedule B to the plaint. As in our view Venkata Lakshamamma had proper title to the properties which she could and did lawfully and validly transfer to the appellant by theexecuted by her in favour of the appellant, the appellant and acquired proper title to these properties and had become the lawful owner thereof. In that view of the matter it does not become necessary for us to consider whether Yella Reddy by entering into the deed of exchange became estopped from challenging the validity of the title of his wife Venkata Lakshamamma and the respondent who seeks to drive title from Yella Reddy, is also so estopped.
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State of W.B Vs. Mohammed Khalid
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in Supdt. &Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja38, this Court observed in paragraph 18 of the judgment as under:The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charge against the accused in respect of the commission of that offence." * (emphasis supplied)80.The confessional statements of the two accused were very much there before the Court. There is no reason to believe that the Court had not looked at the same.81.The other finding that what can be looked at is only the police report, cannot be sustained. In Satya Narain Musadi v. State of Biharl4 (SCC at pages 157-158, para 10) it was held as under: "The report as envisaged by Section 173(2) has to be accompanied as required by sub-section (5) by all the documents and statements of the witnesses therein mentioned. One cannot divorce the details which the report must contain as required by sub-section (5) from its accompaniments which are required to be submitted under sub-section (5). The whole of it is submitted as a report to the Court. But even if a narrow construction is adopted that the police report can only be what is prescribed in Section 173(2) there would be sufficient compliance if what is required to be mentioned by the statute has been set down in the report. To say that all the details of the offence must be set out in the report under Section 173(2 ) submitted by the police officer would be expecting him to do something more than what Parliament has expected him to set out therein. If the report with sufficient particularity and clarity specifies the contravention of the law which is the alleged offence, it would be sufficient compliance with Section 11. The details which would be necessary to be proved to bring ho me the guilt to the accused would emerge at a later stage, when after notice to the accused a charge is framed against him and further in the course of the trial." * 82. The ruling Uma Charan v. State of M.p26 cited by Mr Dipankar Ghosh, has no application to the facts of this case because Regulation 5(5) of the Indian Public Service (Appointment by Promotion) Regulations, 1955, in that case, required reasons to be recorded.83.That is not the position here. Hence, that is clearly distinguishable. The High Court has found in the impugned judgment as follows: "The acts which the accused persons did is the act of preparation and storage of bombs, which are undoubtedly made o f explosive substances. From these acts of preparation and storage of bombs, it cannot be inferred that the accused intended to kill the Hindus or strike terror amongst the people or a section of the people, alienate a section of the people or adversely affect the harmony among different sections of the people. Such an intent cannot be inferred from the mere preparation and storage of bombs. It may be noted in this connection that police report does not disclose that the accused persons caused the explosion. As a consequence of the explosion which occurred on 16-3-1993 a large number of persons who were killed were Muslims and not Hindus and even from the consequences of the explosion with which the accused have not been charged, it cannot b e inferred that accused who are alleged to have been responsible for the preparation and storage of the bombs, intended to kill Hindus, or strike terror amongst a section of people or that they had any of the intents specified in Section 3(1) of the Act." * We are clearly of the opinion that this is a perverse reasoning.84.On intention and motive, we only need to refer to Corpus Juris Secundum (A Contemporary Statement of American Law), Volume 22. It is held at page 116 (Criminal Law) as under: "Intention (a) In general (b) Specific or general intent crimes (a)In general.- As actual intent to commit the particular crime toward which the act moves is a necessary element of an attempt to commit a crime. Although the intent must be one in fact, not merely in law, and may not be inferred from the overt act alone, it may be inferred from the circumstances." * 85.As regards motive in American Jurisprudence, 2nd Edn., Vol. 21, in Section 133, it is stated as under: "133. Motive.- In criminal law motive may be defined as that which leads or tempts the mind to indulge in a criminal act or as the moving power which impels to action for a definite result." * 86.Tested in the light of the above, suffice it to hold the preparation and storage of bombs, as pointed out above, are per se illegal acts. The intention that it was to defend the Muslims, is totally unwarranted. "Bomb is not a toy or top to play with". The further question is, when does the so-called right of self-defence arise? The High Court should have assumed that each of the allegations made in the charge-sheet to be factually correct and should have examined the ingredients of the offence. As rightly contended by Mr U.R. Lalit, learned Senior Counsel, the charge-sheet cannot be considered in a restricted way.87.On a careful perusal of the judgment we are left with the impression that the High Court had indulged in a laboured exercise, without limiting itself to the proper jurisdiction under Article 226 of the Constitution of India, in matters of this kind. We do not want to elaborate on the motive to prepare bombs and the intention thereto since the trial is yet to commence.
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1[ds]35. Upholding the validity of the TADA this Court in Kartar Singh v. State of Punjab9 held that the Act falls under Entry I of List I, i.e., Defence of India. That being so, the offences under Sections 3 and 4 must relate to sovereignty and integrity of India. In Hitendra Vishnu Thakur22 this Court in dealing with the definition of terrorism held: Unless the Act complained or falls strictly within the letter and spirit of Section 3(1) of TADA and is committed with the intention as envisaged by that section the accused cannot Hitendra Vishnu Thakur v. State of Maharashtra,be tried and convicted. Hence, it is submitted the order of sanction must be examined in this light. The Designated Court must record the motive as postulated under Section 3(1). If, therefore, the dominant intention isthe matter will have to be viewed only from that angle. In Sanjay Dutt v. State through CBI23 this Court held that the accused could prove in relation to offences which do not require mens rea, an innocent possession will not bring the offence under Section 5. Therefore, it is submitted in cases where mens rea is required like Sections 3 and 4, it must relate to sovereignty and integrity of India. Hence, the Court will have to determine the dominant intention as laid down in Mathuri v. State of Punjab24. In this case, the dominant intention isTherefore, it will not constitute an of fence under TADA. In thereport, the ingredients of neither Sections 3 nor 4 are mentioned. The documents, if taken into consideration, refer to two confessions. They would only point to selfdefence.It is the duty of the sanctioning authority to apply its mind. In Indu Bhusan Chatterjee v. State25 it has been so laid down. The order according sanction must give reasons. The necessity for giving reasons has been laid down in Uma Charan v. Stat e of M.p26 and again in Siemens Engg. &Mfg. Co. of India Ltd. v. Union of India27. With regard to motive and intention, the learned counsel cites Blacks Law Dictionary.38.Therefore, in this case, the intention was not to terrorise. On the contrary, it is only by way of selfdefence. Therefore, no exception could be taken to the impugnedour considered view, certainly the Designated Court could do all these at the time of framing of charges and not the High Court under Article 226, as has been done in the instant case.67.We are not in a position to accept the submissions of the learned counsel for the respondent that in order to find out whether a valid sanction existed, the High Court had appreciated the findings.68.Equally, much cannot be said of the fact that the order of sanction mentions "sanction for prosecution", since it is stated "sanction for prosecution under Sections 3 and 4 of TADA Act" means only sanction to proceed under Sections 3 and 4 of TADA Act. The ruling of Ram Kumar v. State of Haryana18, deal t with the different situation as to the scope of sanction under Sections 132 and 197 of the Code. In the case of a public servant, both the sanctions were necessary. That judgment has no application to the present case.69.Having regard to the various acts of expressed conspiracy, it has to be "and/or". It is only during the trial the prosecution has to prove the part played by each of the accused.li Mohammad v.it is held asstatements of each prisoner are evidence against himself only and are inadmissible against his fellow accused. Consequently, the only safe method of testing the strength of the case for the prosecution is to take each mans case separately, neglect the evidence of the other and ask whether the conflicting and inconsistent nature of the matters alleged and persons implicated combined with the admission that the accused man was himself present is enough to justify a verdict against him. It may be possible that each is sheltering a third person and even if it be possible that one of the two accused is guilty, there must be circumstances from which could be deduced which of the two is the guilty one. Though proof of motive is not essential , it is a material consideration. But it is not legitimate to speculate as to possible but unproved motives.The difficulty in all cases where two persons are accused of a crime and where the evidence against one is inadmissible against the other is that however carefully assessors or a jury are directed and however firmly a Judge may steel his mind against being influenced against one by the evidence admissible only against the other, nevertheless the mind may inadvertently be affected by the disclosures made by one of the accused to the detriment of the other."of these rulings would apply because the question of leading evidence by the prosecution in relation to conspiracy, as stated above, would arise only during the stage of trial which is yet to commence in the instant case.72. As to the fact of conspiracy, theclearly mentions the same. Therefore, factually, this finding is wrong. We are not in a position to accept the argument of the learned counsel for the respondent that if the bombs are forthere is no mens rea and therefore, no offence underproceeding further, all that we can say, in this case, is that the materials are enough to bring the case under Section 3(1) of the Act. Of course, in order to establish this, evidence will have to be led in during the trial. Therefore, we restrain from making any further observation which may tend to prejudice the parties. If that be so, the question of mentioning in the sanction order that the ordinary law has broken down, does not arise. 78.Coming to taking cognizance, it has been held by the High Court that it is not a reasoned order. We are of the view that the approach of the High Court in this regard is clearly against the decision of this Court in Stree Atyachar VirodhiAgain, in Niranjan Singh K.S. Punjabi case13 it is stated at (SCC page 85, para 7), asin Supdt. &Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja38, this Court observed in paragraph 18 of the judgment asstandard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charge against the accused in respect of the commission of that offence."supplied)80.The confessional statements of the two accused were very much there before the Court. There is no reason to believe that the Court had not looked at the same.81.The other finding that what can be looked at is only the police report, cannot be sustained. In Satya Narain Musadi v. State of Biharl4 (SCC at pagespara 10) it was held asreport as envisaged by Section 173(2) has to be accompanied as required by(5) by all the documents and statements of the witnesses therein mentioned. One cannot divorce the details which the report must contain as required by(5) from its accompaniments which are required to be submitted under(5). The whole of it is submitted as a report to the Court. But even if a narrow construction is adopted that the police report can only be what is prescribed in Section 173(2) there would be sufficient compliance if what is required to be mentioned by the statute has been set down in the report. To say that all the details of the offence must be set out in the report under Section 173(2 ) submitted by the police officer would be expecting him to do something more than what Parliament has expected him to set out therein. If the report with sufficient particularity and clarity specifies the contravention of the law which is the alleged offence, it would be sufficient compliance with Section 11. The details which would be necessary to be proved to bring ho me the guilt to the accused would emerge at a later stage, when after notice to the accused a charge is framed against him and further in the course of the trial."The ruling Uma Charan v. State of M.p26 cited by Mr Dipankar Ghosh, has no application to the facts of this case because Regulation 5(5) of the Indian Public Service (Appointment by Promotion) Regulations, 1955, in that case, required reasons to be recorded.83.That is not the position here. Hence, that is clearly distinguishable. The High Court has found in the impugned judgment asacts which the accused persons did is the act of preparation and storage of bombs, which are undoubtedly made o f explosive substances. From these acts of preparation and storage of bombs, it cannot be inferred that the accused intended to kill the Hindus or strike terror amongst the people or a section of the people, alienate a section of the people or adversely affect the harmony among different sections of the people. Such an intent cannot be inferred from the mere preparation and storage of bombs. It may be noted in this connection that police report does not disclose that the accused persons caused the explosion. As a consequence of the explosion which occurred ona large number of persons who were killed were Muslims and not Hindus and even from the consequences of the explosion with which the accused have not been charged, it cannot b e inferred that accused who are alleged to have been responsible for the preparation and storage of the bombs, intended to kill Hindus, or strike terror amongst a section of people or that they had any of the intents specified in Section 3(1) of the Act."are clearly of the opinion that this is a perverse reasoning.84.On intention and motive, we only need to refer to Corpus Juris Secundum (A Contemporary Statement of American Law), Volume 22. It is held at page 116 (Criminal Law) as(a) In general (b) Specific or general intent crimes (a)In general.As actual intent to commit the particular crime toward which the act moves is a necessary element of an attempt to commit a crime. Although the intent must be one in fact, not merely in law, and may not be inferred from the overt act alone, it may be inferred from the circumstances."regards motive in American Jurisprudence, 2nd Edn., Vol. 21, in Section 133, it is stated as. In criminallaw motive may be defined as that which leads or tempts the mind to indulge in a criminal act or as the moving power which impels to action for a definite result."in the light of the above, suffice it to hold the preparation and storage of bombs, as pointed out above, are per se illegal acts. The intention that it was to defend the Muslims, is totally unwarranted. "Bomb is not a toy or top to play with". The further question is, when does thence arise? The High Court should have assumed that each of the allegations made in theto be factually correct and should have examined the ingredients of the offence. As rightly contended by Mr U.R. Lalit, learned Senior Counsel, thecannot be considered in a restricted way.87.On a careful perusal of the judgment we are left with the impression that the High Court had indulged in a laboured exercise, without limiting itself to the proper jurisdiction under Article 226 of the Constitution of India, in matters of this kind. We do not want to elaborate on the motive to prepare bombs and the intention thereto since the trial is yet to commence.
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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.
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in Supdt. &Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja38, this Court observed in paragraph 18 of the judgment as under:The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charge against the accused in respect of the commission of that offence." * (emphasis supplied)80.The confessional statements of the two accused were very much there before the Court. There is no reason to believe that the Court had not looked at the same.81.The other finding that what can be looked at is only the police report, cannot be sustained. In Satya Narain Musadi v. State of Biharl4 (SCC at pages 157-158, para 10) it was held as under: "The report as envisaged by Section 173(2) has to be accompanied as required by sub-section (5) by all the documents and statements of the witnesses therein mentioned. One cannot divorce the details which the report must contain as required by sub-section (5) from its accompaniments which are required to be submitted under sub-section (5). The whole of it is submitted as a report to the Court. But even if a narrow construction is adopted that the police report can only be what is prescribed in Section 173(2) there would be sufficient compliance if what is required to be mentioned by the statute has been set down in the report. To say that all the details of the offence must be set out in the report under Section 173(2 ) submitted by the police officer would be expecting him to do something more than what Parliament has expected him to set out therein. If the report with sufficient particularity and clarity specifies the contravention of the law which is the alleged offence, it would be sufficient compliance with Section 11. The details which would be necessary to be proved to bring ho me the guilt to the accused would emerge at a later stage, when after notice to the accused a charge is framed against him and further in the course of the trial." * 82. The ruling Uma Charan v. State of M.p26 cited by Mr Dipankar Ghosh, has no application to the facts of this case because Regulation 5(5) of the Indian Public Service (Appointment by Promotion) Regulations, 1955, in that case, required reasons to be recorded.83.That is not the position here. Hence, that is clearly distinguishable. The High Court has found in the impugned judgment as follows: "The acts which the accused persons did is the act of preparation and storage of bombs, which are undoubtedly made o f explosive substances. From these acts of preparation and storage of bombs, it cannot be inferred that the accused intended to kill the Hindus or strike terror amongst the people or a section of the people, alienate a section of the people or adversely affect the harmony among different sections of the people. Such an intent cannot be inferred from the mere preparation and storage of bombs. It may be noted in this connection that police report does not disclose that the accused persons caused the explosion. As a consequence of the explosion which occurred on 16-3-1993 a large number of persons who were killed were Muslims and not Hindus and even from the consequences of the explosion with which the accused have not been charged, it cannot b e inferred that accused who are alleged to have been responsible for the preparation and storage of the bombs, intended to kill Hindus, or strike terror amongst a section of people or that they had any of the intents specified in Section 3(1) of the Act." * We are clearly of the opinion that this is a perverse reasoning.84.On intention and motive, we only need to refer to Corpus Juris Secundum (A Contemporary Statement of American Law), Volume 22. It is held at page 116 (Criminal Law) as under: "Intention (a) In general (b) Specific or general intent crimes (a)In general.- As actual intent to commit the particular crime toward which the act moves is a necessary element of an attempt to commit a crime. Although the intent must be one in fact, not merely in law, and may not be inferred from the overt act alone, it may be inferred from the circumstances." * 85.As regards motive in American Jurisprudence, 2nd Edn., Vol. 21, in Section 133, it is stated as under: "133. Motive.- In criminal law motive may be defined as that which leads or tempts the mind to indulge in a criminal act or as the moving power which impels to action for a definite result." * 86.Tested in the light of the above, suffice it to hold the preparation and storage of bombs, as pointed out above, are per se illegal acts. The intention that it was to defend the Muslims, is totally unwarranted. "Bomb is not a toy or top to play with". The further question is, when does the so-called right of self-defence arise? The High Court should have assumed that each of the allegations made in the charge-sheet to be factually correct and should have examined the ingredients of the offence. As rightly contended by Mr U.R. Lalit, learned Senior Counsel, the charge-sheet cannot be considered in a restricted way.87.On a careful perusal of the judgment we are left with the impression that the High Court had indulged in a laboured exercise, without limiting itself to the proper jurisdiction under Article 226 of the Constitution of India, in matters of this kind. We do not want to elaborate on the motive to prepare bombs and the intention thereto since the trial is yet to commence.
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that it is not a reasoned order. We are of the view that the approach of the High Court in this regard is clearly against the decision of this Court in Stree Atyachar VirodhiAgain, in Niranjan Singh K.S. Punjabi case13 it is stated at (SCC page 85, para 7), asin Supdt. &Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja38, this Court observed in paragraph 18 of the judgment asstandard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charge against the accused in respect of the commission of that offence."supplied)80.The confessional statements of the two accused were very much there before the Court. There is no reason to believe that the Court had not looked at the same.81.The other finding that what can be looked at is only the police report, cannot be sustained. In Satya Narain Musadi v. State of Biharl4 (SCC at pagespara 10) it was held asreport as envisaged by Section 173(2) has to be accompanied as required by(5) by all the documents and statements of the witnesses therein mentioned. One cannot divorce the details which the report must contain as required by(5) from its accompaniments which are required to be submitted under(5). The whole of it is submitted as a report to the Court. But even if a narrow construction is adopted that the police report can only be what is prescribed in Section 173(2) there would be sufficient compliance if what is required to be mentioned by the statute has been set down in the report. To say that all the details of the offence must be set out in the report under Section 173(2 ) submitted by the police officer would be expecting him to do something more than what Parliament has expected him to set out therein. If the report with sufficient particularity and clarity specifies the contravention of the law which is the alleged offence, it would be sufficient compliance with Section 11. The details which would be necessary to be proved to bring ho me the guilt to the accused would emerge at a later stage, when after notice to the accused a charge is framed against him and further in the course of the trial."The ruling Uma Charan v. State of M.p26 cited by Mr Dipankar Ghosh, has no application to the facts of this case because Regulation 5(5) of the Indian Public Service (Appointment by Promotion) Regulations, 1955, in that case, required reasons to be recorded.83.That is not the position here. Hence, that is clearly distinguishable. The High Court has found in the impugned judgment asacts which the accused persons did is the act of preparation and storage of bombs, which are undoubtedly made o f explosive substances. From these acts of preparation and storage of bombs, it cannot be inferred that the accused intended to kill the Hindus or strike terror amongst the people or a section of the people, alienate a section of the people or adversely affect the harmony among different sections of the people. Such an intent cannot be inferred from the mere preparation and storage of bombs. It may be noted in this connection that police report does not disclose that the accused persons caused the explosion. As a consequence of the explosion which occurred ona large number of persons who were killed were Muslims and not Hindus and even from the consequences of the explosion with which the accused have not been charged, it cannot b e inferred that accused who are alleged to have been responsible for the preparation and storage of the bombs, intended to kill Hindus, or strike terror amongst a section of people or that they had any of the intents specified in Section 3(1) of the Act."are clearly of the opinion that this is a perverse reasoning.84.On intention and motive, we only need to refer to Corpus Juris Secundum (A Contemporary Statement of American Law), Volume 22. It is held at page 116 (Criminal Law) as(a) In general (b) Specific or general intent crimes (a)In general.As actual intent to commit the particular crime toward which the act moves is a necessary element of an attempt to commit a crime. Although the intent must be one in fact, not merely in law, and may not be inferred from the overt act alone, it may be inferred from the circumstances."regards motive in American Jurisprudence, 2nd Edn., Vol. 21, in Section 133, it is stated as. In criminallaw motive may be defined as that which leads or tempts the mind to indulge in a criminal act or as the moving power which impels to action for a definite result."in the light of the above, suffice it to hold the preparation and storage of bombs, as pointed out above, are per se illegal acts. The intention that it was to defend the Muslims, is totally unwarranted. "Bomb is not a toy or top to play with". The further question is, when does thence arise? The High Court should have assumed that each of the allegations made in theto be factually correct and should have examined the ingredients of the offence. As rightly contended by Mr U.R. Lalit, learned Senior Counsel, thecannot be considered in a restricted way.87.On a careful perusal of the judgment we are left with the impression that the High Court had indulged in a laboured exercise, without limiting itself to the proper jurisdiction under Article 226 of the Constitution of India, in matters of this kind. We do not want to elaborate on the motive to prepare bombs and the intention thereto since the trial is yet to commence.
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Shew Bux Mohata And Another Vs. Sm. Tulsimanjari Dasi And Another
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R. 7 of O. 45 after its amendment in 1920 had taken away the said jurisdiction. Section 112 of the Code expressly provides that nothing contained in the Code shall be deemed, inter alia, to interfere with any rules made by the S. C., and for the time being in force, for the presentation of appeals to that Court or their conduct before that Court. Therefore, if O. XII, R. 3 expressly recognises and gives jurisdiction to the High Courts to extend the time for furnishing the security or to make the deposit in a proper case that provision would not be interfered with by R. 7 of O. 45. That is how, apart from the provisions of R. 7 of O. 45, we reach the conclusion that the Calcutta High Court had jurisdiction to extend time for furnishing the security in the present case. However, as we have already held the amendment of R. 7 of O. 45 does not really take away the pre-existing jurisdiction of the High Courts to extend time, and so there is complete harmony between the said rule and O. XII, R. 3 of the Supreme Court Rules. 7. On this question there appears to be consensus of judicial opinion in the decisions of all the High Courts in India except the Calcutta High Court which for some years past has struck a note of dissent. It is unnecessary to deal with a catena of decisions on which Mr. Chatterjee relied in support of his contentions. It would be enough merely to mention them. It appears that in some High Courts the preset question was referred to a Full Bench and the decisions of the Full Bench have negatived the view which appears to have been taken by the Division Benches in the said High Courts on the earlier occasions that the High Courts had no jurisdiction to extend time (Vide: Nilkant Balwant v. Sachidanand Vidya Narsimha, ILR 51 Bom 430: (AIR 1927 Bom 217 ) (FB): Bishnath Singh v. Court of Wards Estate Sri Ram Chandra Naik, ILR (1939) All 549: (AIR 1939 All 299 ) (FB); Gulam Hussain v. Mansurbeg, ILR 1952 Nag 406: (AIR 1952 Nag 302) (FB); Lachmeshwar Prasad v. Girdhari Lal, ILR 19 Pat 123: (AIR 1939 Pat 667 ) (FB); Ghulam Rasul v. Ghulam Qutabud-din, ILR (1942) 23 Lah 447: (AIR 1942 Lah 147) (FB); Thota Pichaiah v. Narasimhacharyulu, ILR 1956 Andhra 55: ( (S) AIR 1956 Andhra 120) (FB); and Ismail Piperdi v. Momin Bi Bi, 1939 Rang LR 668: (AIR 1940 Rang 12) (FB). 8. Even in Calcutta it was held by the Calcutta High Court by a Full Bench in Roy Jotindranath v. Rai Prasanna Kumar, 11Cal WN 1104, that the High Court had power to extend time as provided by S. 602 of the code for depositing the estimate cost of translating, transcribing, indexing and transmitting to the Privy Council the records of the case under appeal, but it was added that the Court should not extend time without some cogent reason. In support of this conclusion the High Court relied upon the decision of the Privy Council in the case of 11 Ind App 7. The same view was expressed by the said Court in Harendra Lal v. Sm. Hari Dasi Debi, 14 Cal WN 420, where it was held that High Court had power to extend the time for depositing costs in Court but it ought not to do so without some cogent reasons. In reaching this conclusion the Court followed its earlier decision in the case of Roy Jyotindranath, 11 Cal WN 1104. It, however, appears that in Raj Kumar Govind Narayan v. Shamlal Singh, 39 Cal WN 651, Chief Justice Rankin and Ghose, J., took a contrary view and held that there was no jurisdiction to extend time for furnishing the security under O. 45, R. 7 as amended in 1920. With respect, the question does not appear to have been fully argued before the Court, for the judgment does not discuss the question of construing the relevant provisions of O. 45, R. 7 or of R. 9 of the Privy Council Rules, and indeed the earlier decisions of the Court on that point do not appear to have been cited either. Even so, this decision was subsequently followed and that led to a consistent practice in the said High Court on which the learned judges have relied in rejected the appellants application for extension of time in the present case. In this connection it may be relevant to note that when this question was raised before the Calcutta High Court again in Akimuddin v. Fateh Chand, 44 |Cal WN 920, Chief Justice Derbyshire was referred to the Full Bench decision of the Bombay High Court in Nilkanth Balwant ILR 51 Bom 430: (AIR 1927 Bom 217 ) in support of the argument that there was a jurisdiction to extend time for furnishing security, but he observed that though he had great respect for the said Full Bench decision there was a contrary decision of the Calcutta High Court in the case of Raj Kumar Govind Narayan, 39 Cal WN 651, and so he was bound to follow the said decision and conform to the practice prevailing in the Calcutta High Court. In our opinion, the practice prevailing in the Calcutta High Court since the decision of Chief Justice Rankin in the case of Raj Kumar Govind Narayan, 39 Cal WN 651, is not justified either by the provisions of O. 45, R. 7 of the Code or O. XII, R. 3 of the Supreme Court Rules. We must accordingly hold that the High Court was in error in holding that it had no jurisdiction to entertain the application made by the appellants to extend time for furnishing the security. On the view which it took the High Court naturally did not examine the merits of the appellants, case that there were sufficient and cogent reasons for condoning the delay.
|
1[ds]4. There can be no doubt that the object of the amendment was to expedite the final decision of the appeals which were taken before the Privy Council, and so the restrictive words have now been introduced whereby the period prescribed by the first part of the rule cannot be extended beyond 150 days;Having regard to the fact that even before the amendment the period of six months had been indicated it seems somewhat difficult to hold that by restricting the period to 150 days by the use of the restrictive words the Legislature had intended to takeaway the pre-existing jurisdiction of the High Courts to extend the period for a reasonable cause. The jurisdiction to enlarge the period for a good cause shown could not have been intended to be taken away by implication merely by the use of the restrictive clause introduced in the amendmentIn our opinion, therefore, reading O. 45, R. 7 as amended along with the other relevant provisions of the said Order it would be difficult to hold that the High Court has no jurisdiction to extend time for furnishing security under the said rule. High Courts had jurisdiction to extend time prior to the amendment of 1920 and the amendment of 1920 has made no difference in that behalfThis rule corresponds exactly to R. 9 of the Privy Council Rules. On a fair construction of this rule there appears to be no doubt that if a party having obtained a certificate from the High Court fails to furnish security or to make the required deposit it is open to the Court to adopt either of two courses; it may cancel the certificate and may give directions as to the costs of the appeal and the security entered into by the appellant or it may make such further or other order as the justice of the case may require; and that clearly suggests that the High Court has jurisdiction to consider the question as to whether the justice of the case requires that the certificate already granted should not be cancelled and further time should be given to the party to furnish the security or to make the required deposit. The last clause of R. 3 refers to such further or other order as the justice of the case requires, and that must necessarily mean an order other than, and different from, the order cancelling the certificate. It is true that the intention behind this rule might have been differently and better expressed but the object of the rule is plain and unambiguous and its construction presents no difficult whatever. Failure to furnish the security or to make the deposit in time does not inevitably and in every case lead to the cancellation of the certificate. Despite the said failure some further or other order according to the justice of the case may still be passed by the Court in its discretion, and that, in our opinion, must mean an order condoning the default and granting further time to furnish the security or to make the required deposit. If this be the true position about the effect of O. XII, r 3 of the Supreme Court Rules it would follow that the High Courts would have jurisdiction to extend time for furnishing security even if R. 7 of O. 45 after its amendment in 1920 had taken away the said jurisdiction. Section 112 of the Code expressly provides that nothing contained in the Code shall be deemed, inter alia, to interfere with any rules made by the S. C., and for the time being in force, for the presentation of appeals to that Court or their conduct before that Court. Therefore, if O. XII, R. 3 expressly recognises and gives jurisdiction to the High Courts to extend the time for furnishing the security or to make the deposit in a proper case that provision would not be interfered with by R. 7 of O. 45. That is how, apart from the provisions of R. 7 of O. 45, we reach the conclusion that the Calcutta High Court had jurisdiction to extend time for furnishing the security in the present case. However, as we have already held the amendment of R. 7 of O. 45 does not really take away the pre-existing jurisdiction of the High Courts to extend time, and so there is complete harmony between the said rule and O. XII, R. 3 of the Supreme Court RulesIt is unnecessary to deal with a catena of decisions on which Mr. Chatterjee relied in support of his contentions. It would be enough merely to mention them. In our opinion, the practice prevailing in the Calcutta High Court since the decision of Chief Justice Rankin in the case of Raj Kumar Govind Narayan, 39 Cal WN 651, is not justified either by the provisions of O. 45, R. 7 of the Code or O. XII, R. 3 of the Supreme Court Rules. We must accordingly hold that the High Court was in error in holding that it had no jurisdiction to entertain the application made by the appellants to extend time for furnishing the security. On the view which it took the High Court naturally did not examine the merits of the appellants, case that there were sufficient and cogent reasons for condoning the delay.
| 1 | 3,224 | 950 |
### 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:
R. 7 of O. 45 after its amendment in 1920 had taken away the said jurisdiction. Section 112 of the Code expressly provides that nothing contained in the Code shall be deemed, inter alia, to interfere with any rules made by the S. C., and for the time being in force, for the presentation of appeals to that Court or their conduct before that Court. Therefore, if O. XII, R. 3 expressly recognises and gives jurisdiction to the High Courts to extend the time for furnishing the security or to make the deposit in a proper case that provision would not be interfered with by R. 7 of O. 45. That is how, apart from the provisions of R. 7 of O. 45, we reach the conclusion that the Calcutta High Court had jurisdiction to extend time for furnishing the security in the present case. However, as we have already held the amendment of R. 7 of O. 45 does not really take away the pre-existing jurisdiction of the High Courts to extend time, and so there is complete harmony between the said rule and O. XII, R. 3 of the Supreme Court Rules. 7. On this question there appears to be consensus of judicial opinion in the decisions of all the High Courts in India except the Calcutta High Court which for some years past has struck a note of dissent. It is unnecessary to deal with a catena of decisions on which Mr. Chatterjee relied in support of his contentions. It would be enough merely to mention them. It appears that in some High Courts the preset question was referred to a Full Bench and the decisions of the Full Bench have negatived the view which appears to have been taken by the Division Benches in the said High Courts on the earlier occasions that the High Courts had no jurisdiction to extend time (Vide: Nilkant Balwant v. Sachidanand Vidya Narsimha, ILR 51 Bom 430: (AIR 1927 Bom 217 ) (FB): Bishnath Singh v. Court of Wards Estate Sri Ram Chandra Naik, ILR (1939) All 549: (AIR 1939 All 299 ) (FB); Gulam Hussain v. Mansurbeg, ILR 1952 Nag 406: (AIR 1952 Nag 302) (FB); Lachmeshwar Prasad v. Girdhari Lal, ILR 19 Pat 123: (AIR 1939 Pat 667 ) (FB); Ghulam Rasul v. Ghulam Qutabud-din, ILR (1942) 23 Lah 447: (AIR 1942 Lah 147) (FB); Thota Pichaiah v. Narasimhacharyulu, ILR 1956 Andhra 55: ( (S) AIR 1956 Andhra 120) (FB); and Ismail Piperdi v. Momin Bi Bi, 1939 Rang LR 668: (AIR 1940 Rang 12) (FB). 8. Even in Calcutta it was held by the Calcutta High Court by a Full Bench in Roy Jotindranath v. Rai Prasanna Kumar, 11Cal WN 1104, that the High Court had power to extend time as provided by S. 602 of the code for depositing the estimate cost of translating, transcribing, indexing and transmitting to the Privy Council the records of the case under appeal, but it was added that the Court should not extend time without some cogent reason. In support of this conclusion the High Court relied upon the decision of the Privy Council in the case of 11 Ind App 7. The same view was expressed by the said Court in Harendra Lal v. Sm. Hari Dasi Debi, 14 Cal WN 420, where it was held that High Court had power to extend the time for depositing costs in Court but it ought not to do so without some cogent reasons. In reaching this conclusion the Court followed its earlier decision in the case of Roy Jyotindranath, 11 Cal WN 1104. It, however, appears that in Raj Kumar Govind Narayan v. Shamlal Singh, 39 Cal WN 651, Chief Justice Rankin and Ghose, J., took a contrary view and held that there was no jurisdiction to extend time for furnishing the security under O. 45, R. 7 as amended in 1920. With respect, the question does not appear to have been fully argued before the Court, for the judgment does not discuss the question of construing the relevant provisions of O. 45, R. 7 or of R. 9 of the Privy Council Rules, and indeed the earlier decisions of the Court on that point do not appear to have been cited either. Even so, this decision was subsequently followed and that led to a consistent practice in the said High Court on which the learned judges have relied in rejected the appellants application for extension of time in the present case. In this connection it may be relevant to note that when this question was raised before the Calcutta High Court again in Akimuddin v. Fateh Chand, 44 |Cal WN 920, Chief Justice Derbyshire was referred to the Full Bench decision of the Bombay High Court in Nilkanth Balwant ILR 51 Bom 430: (AIR 1927 Bom 217 ) in support of the argument that there was a jurisdiction to extend time for furnishing security, but he observed that though he had great respect for the said Full Bench decision there was a contrary decision of the Calcutta High Court in the case of Raj Kumar Govind Narayan, 39 Cal WN 651, and so he was bound to follow the said decision and conform to the practice prevailing in the Calcutta High Court. In our opinion, the practice prevailing in the Calcutta High Court since the decision of Chief Justice Rankin in the case of Raj Kumar Govind Narayan, 39 Cal WN 651, is not justified either by the provisions of O. 45, R. 7 of the Code or O. XII, R. 3 of the Supreme Court Rules. We must accordingly hold that the High Court was in error in holding that it had no jurisdiction to entertain the application made by the appellants to extend time for furnishing the security. On the view which it took the High Court naturally did not examine the merits of the appellants, case that there were sufficient and cogent reasons for condoning the delay.
### Response:
1
### Explanation:
4. There can be no doubt that the object of the amendment was to expedite the final decision of the appeals which were taken before the Privy Council, and so the restrictive words have now been introduced whereby the period prescribed by the first part of the rule cannot be extended beyond 150 days;Having regard to the fact that even before the amendment the period of six months had been indicated it seems somewhat difficult to hold that by restricting the period to 150 days by the use of the restrictive words the Legislature had intended to takeaway the pre-existing jurisdiction of the High Courts to extend the period for a reasonable cause. The jurisdiction to enlarge the period for a good cause shown could not have been intended to be taken away by implication merely by the use of the restrictive clause introduced in the amendmentIn our opinion, therefore, reading O. 45, R. 7 as amended along with the other relevant provisions of the said Order it would be difficult to hold that the High Court has no jurisdiction to extend time for furnishing security under the said rule. High Courts had jurisdiction to extend time prior to the amendment of 1920 and the amendment of 1920 has made no difference in that behalfThis rule corresponds exactly to R. 9 of the Privy Council Rules. On a fair construction of this rule there appears to be no doubt that if a party having obtained a certificate from the High Court fails to furnish security or to make the required deposit it is open to the Court to adopt either of two courses; it may cancel the certificate and may give directions as to the costs of the appeal and the security entered into by the appellant or it may make such further or other order as the justice of the case may require; and that clearly suggests that the High Court has jurisdiction to consider the question as to whether the justice of the case requires that the certificate already granted should not be cancelled and further time should be given to the party to furnish the security or to make the required deposit. The last clause of R. 3 refers to such further or other order as the justice of the case requires, and that must necessarily mean an order other than, and different from, the order cancelling the certificate. It is true that the intention behind this rule might have been differently and better expressed but the object of the rule is plain and unambiguous and its construction presents no difficult whatever. Failure to furnish the security or to make the deposit in time does not inevitably and in every case lead to the cancellation of the certificate. Despite the said failure some further or other order according to the justice of the case may still be passed by the Court in its discretion, and that, in our opinion, must mean an order condoning the default and granting further time to furnish the security or to make the required deposit. If this be the true position about the effect of O. XII, r 3 of the Supreme Court Rules it would follow that the High Courts would have jurisdiction to extend time for furnishing security even if R. 7 of O. 45 after its amendment in 1920 had taken away the said jurisdiction. Section 112 of the Code expressly provides that nothing contained in the Code shall be deemed, inter alia, to interfere with any rules made by the S. C., and for the time being in force, for the presentation of appeals to that Court or their conduct before that Court. Therefore, if O. XII, R. 3 expressly recognises and gives jurisdiction to the High Courts to extend the time for furnishing the security or to make the deposit in a proper case that provision would not be interfered with by R. 7 of O. 45. That is how, apart from the provisions of R. 7 of O. 45, we reach the conclusion that the Calcutta High Court had jurisdiction to extend time for furnishing the security in the present case. However, as we have already held the amendment of R. 7 of O. 45 does not really take away the pre-existing jurisdiction of the High Courts to extend time, and so there is complete harmony between the said rule and O. XII, R. 3 of the Supreme Court RulesIt is unnecessary to deal with a catena of decisions on which Mr. Chatterjee relied in support of his contentions. It would be enough merely to mention them. In our opinion, the practice prevailing in the Calcutta High Court since the decision of Chief Justice Rankin in the case of Raj Kumar Govind Narayan, 39 Cal WN 651, is not justified either by the provisions of O. 45, R. 7 of the Code or O. XII, R. 3 of the Supreme Court Rules. We must accordingly hold that the High Court was in error in holding that it had no jurisdiction to entertain the application made by the appellants to extend time for furnishing the security. On the view which it took the High Court naturally did not examine the merits of the appellants, case that there were sufficient and cogent reasons for condoning the delay.
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A K Srivastava Vs. National Insurance Co
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of that proceeding." 15. Thus, the legal position is clear and the respondent cannot now re-agitate the question regarding maintainability of the suit under Section 34 of the Act. However, learned counsel adopted an alternative contention before us that the suit is in effect one for specific enforcement of a contract and such a suit is not conceived under Section 14 of the Act and hence it is not maintainable. According to the learned counsel, the reliefs claimed in the suit, if granted, would result in specific enforcement of a contract of employment. Section 14(1)(a) of the Act makes it clear that a contract of employment is not specifically enforceable since non-performance of it can be compensated by money, contended the counsel. 16. The said contention is based on a fallacious premise that the suit was for enforcement of a contract of employment. Respondent was appointed on certain terms and pursuant to such appointment he worked within the scope of such employment. Termination of his employment purportedly in terms of the same contract is challenged by him by praying for a declaration that such termination is invalid and therefore, he continues in the same employment. Maintainability of a suit cannot be adjudged from the effect which the decree may cause. It can be determined on the basis of the ostensible pleadings made and the stated reliefs claimed in the plaint. 17. Though Specific Relief Act widens the spheres of the civil court its preamble shows that the Act is not exhaustive of all kinds of specific reliefs. " An Act to define and amend the law relating to certain kinds of specific relief." It is well to remember that the Act is not restricted to specific performance of contracts as the statute governs powers of the court in granting specific reliefs in a variety of fields. Even so, the Act does not cover all specific reliefs conceivable. Its preceding enactment (Specific Relief Act, 1877) was held by the courts in India as not exhaustive. Vide Ramdas Khatavu v. Atlas Mills, AIR 1931 Bom, 151. In Hungerford Investment Trust Ltd. v. Haridas Mundhra and others, 1972(3) SCC 664, this Court observed that Specific Relief Act, 1963, is also not an exhaustive enactment and it does not consolidate the whole law on the subject. "As the preamble would indicate, it is an Act to define and amend the law relating to certain kinds of specific relief. It does not purport to lay down the law relating to specific relief in all its ramifications." 18. Chapter II contains a fasciculus of rules relating to specific performance of contracts. Section 14 falls within that Chapter and it points to contracts which are not specifically enforceable. Powers of the Court to grant declaratory reliefs are adumbrated in Section 34 of the Act which falls under Chapter VI of the Act. It is well to remember that even the wide language contained in Section 34 did not exhaust the powers of the court to grant declaratory reliefs. In Veruareddi Ramaraghava Reddy and others v. Konduru Seshu Reddy and others, 1966 Supple. SCR 270, and in M/s. Supreme General Films Exchange Ltd. v. His Highness Maharaja Sir Brijnath Singhji Deo of Maihar and others, 1975(2) SCC 530, this Court while interpreting the corresponding provision in the preceding enactment of 1877 (Section 42) has observe that "Section 42 merely gives statutory recognition to a well- recognised type of declaratory relief and subjects it to a limitation, but it cannot be deemed to exhaust every kind of declaratory relief or to circumscribe the jurisdiction of courts to give declarations of right in appropriate cases falling outside Section 42." 19. The position remains the same under the present Act also. Hence the mere fact that a suit which is not maintainable under Section 14 of the Act is not to persist with its disability of non-admission to civil courts even outside the contours of Chapter II of the Act. Section 34 is enough to open the corridors of civil courts to admit suits filed for a variety of declaratory reliefs. 20. Now the more important question is, whether appellant is entitled to declaration that he continues to be in the employment of respondent-company. High Court held that he is not because the contract of employment does not entitle him to continue. 21. Terms and conditions of employment of the appellant have been incorporated in the letter of appointment dated 2.12.1980. It contains the following: (1) Initially he would be on probation for a period of 12 months and during that period he has to achieve a premium of at least Rs. 75,000/- to become eligible for promotion as Probationary Inspector, Grade I.(2) If appellant falls short of the said target, respondent-company reserved its right to extend the period of probation by another 12 months provided the following conditions are satisfied:(a) He should have produced a premium amount of Rs. 50,000/- during the first 12 months period.(b) A request should be made by the appellant in writing for the purpose of getting extension of the period of probation.(c) the company has discretion to decide whether such request should be granted or not.(3) Unless a letter appointing him as Probationary Inspector (Grade-I) is issued by the company, before the expiry of the initial probationary period or the extended probationary period (as the case may be) his service shall stand automatically terminated.(4) His service is also liable to be terminated without assigning any reason during probationary period and/or extended period. 22. Appellant has no case that respondent-company has issued any letter appointing him as "Probationary Inspector (Grade-I)" before the expiry of the initial period of 12 months nor has he a case that initial period of probation was further extended at any time. 23. The above being the admitted position, appellant cannot get a declaration that he continues to be in service. Hence the conclusion of the High Court that the suit is liable to be dismissed does not warrant any interference. 24.
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0[ds]11. It is well nigh settled that a decision on an issue raised in a writ petition under Article 226 or Article 32 of the Constitution would also operate as res judicata between the same parties in subsequent judicial proceedings. The only exception is that the rule of res judicata would not operate to the detriment or impairment of a fundamental right.Though the said explanation may not stricto sensu apply to the trial stage, the principal couched in it must gain application thereto. It is immaterial that the writ petition was filed only subsequently because the findings made therein became final as no appeal was filed against the judgment.Thus, the legal position is clear and the respondent cannot now re-agitate the question regarding maintainability of the suit under Section 34 of the Act. However, learned counsel adopted an alternative contention before us that the suit is in effect one for specific enforcement of a contract and such a suit is not conceived under Section 14 of the Act and hence it is not maintainable. According to the learned counsel, the reliefs claimed in the suit, if granted, would result in specific enforcement of a contract of employment. Section 14(1)(a) of the Act makes it clear that a contract of employment is not specifically enforceable since non-performance of it can be compensated by money, contended the counsel.Though Specific Relief Act widens the spheres of the civil court its preamble shows that the Act is not exhaustive of all kinds of specific reliefs. " An Act to define and amend the law relating to certain kinds of specific relief." It is well to remember that the Act is not restricted to specific performance of contracts as the statute governs powers of the court in granting specific reliefs in a variety of fields. Even so, the Act does not cover all specific reliefs conceivable.
| 0 | 2,631 | 340 |
### 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:
of that proceeding." 15. Thus, the legal position is clear and the respondent cannot now re-agitate the question regarding maintainability of the suit under Section 34 of the Act. However, learned counsel adopted an alternative contention before us that the suit is in effect one for specific enforcement of a contract and such a suit is not conceived under Section 14 of the Act and hence it is not maintainable. According to the learned counsel, the reliefs claimed in the suit, if granted, would result in specific enforcement of a contract of employment. Section 14(1)(a) of the Act makes it clear that a contract of employment is not specifically enforceable since non-performance of it can be compensated by money, contended the counsel. 16. The said contention is based on a fallacious premise that the suit was for enforcement of a contract of employment. Respondent was appointed on certain terms and pursuant to such appointment he worked within the scope of such employment. Termination of his employment purportedly in terms of the same contract is challenged by him by praying for a declaration that such termination is invalid and therefore, he continues in the same employment. Maintainability of a suit cannot be adjudged from the effect which the decree may cause. It can be determined on the basis of the ostensible pleadings made and the stated reliefs claimed in the plaint. 17. Though Specific Relief Act widens the spheres of the civil court its preamble shows that the Act is not exhaustive of all kinds of specific reliefs. " An Act to define and amend the law relating to certain kinds of specific relief." It is well to remember that the Act is not restricted to specific performance of contracts as the statute governs powers of the court in granting specific reliefs in a variety of fields. Even so, the Act does not cover all specific reliefs conceivable. Its preceding enactment (Specific Relief Act, 1877) was held by the courts in India as not exhaustive. Vide Ramdas Khatavu v. Atlas Mills, AIR 1931 Bom, 151. In Hungerford Investment Trust Ltd. v. Haridas Mundhra and others, 1972(3) SCC 664, this Court observed that Specific Relief Act, 1963, is also not an exhaustive enactment and it does not consolidate the whole law on the subject. "As the preamble would indicate, it is an Act to define and amend the law relating to certain kinds of specific relief. It does not purport to lay down the law relating to specific relief in all its ramifications." 18. Chapter II contains a fasciculus of rules relating to specific performance of contracts. Section 14 falls within that Chapter and it points to contracts which are not specifically enforceable. Powers of the Court to grant declaratory reliefs are adumbrated in Section 34 of the Act which falls under Chapter VI of the Act. It is well to remember that even the wide language contained in Section 34 did not exhaust the powers of the court to grant declaratory reliefs. In Veruareddi Ramaraghava Reddy and others v. Konduru Seshu Reddy and others, 1966 Supple. SCR 270, and in M/s. Supreme General Films Exchange Ltd. v. His Highness Maharaja Sir Brijnath Singhji Deo of Maihar and others, 1975(2) SCC 530, this Court while interpreting the corresponding provision in the preceding enactment of 1877 (Section 42) has observe that "Section 42 merely gives statutory recognition to a well- recognised type of declaratory relief and subjects it to a limitation, but it cannot be deemed to exhaust every kind of declaratory relief or to circumscribe the jurisdiction of courts to give declarations of right in appropriate cases falling outside Section 42." 19. The position remains the same under the present Act also. Hence the mere fact that a suit which is not maintainable under Section 14 of the Act is not to persist with its disability of non-admission to civil courts even outside the contours of Chapter II of the Act. Section 34 is enough to open the corridors of civil courts to admit suits filed for a variety of declaratory reliefs. 20. Now the more important question is, whether appellant is entitled to declaration that he continues to be in the employment of respondent-company. High Court held that he is not because the contract of employment does not entitle him to continue. 21. Terms and conditions of employment of the appellant have been incorporated in the letter of appointment dated 2.12.1980. It contains the following: (1) Initially he would be on probation for a period of 12 months and during that period he has to achieve a premium of at least Rs. 75,000/- to become eligible for promotion as Probationary Inspector, Grade I.(2) If appellant falls short of the said target, respondent-company reserved its right to extend the period of probation by another 12 months provided the following conditions are satisfied:(a) He should have produced a premium amount of Rs. 50,000/- during the first 12 months period.(b) A request should be made by the appellant in writing for the purpose of getting extension of the period of probation.(c) the company has discretion to decide whether such request should be granted or not.(3) Unless a letter appointing him as Probationary Inspector (Grade-I) is issued by the company, before the expiry of the initial probationary period or the extended probationary period (as the case may be) his service shall stand automatically terminated.(4) His service is also liable to be terminated without assigning any reason during probationary period and/or extended period. 22. Appellant has no case that respondent-company has issued any letter appointing him as "Probationary Inspector (Grade-I)" before the expiry of the initial period of 12 months nor has he a case that initial period of probation was further extended at any time. 23. The above being the admitted position, appellant cannot get a declaration that he continues to be in service. Hence the conclusion of the High Court that the suit is liable to be dismissed does not warrant any interference. 24.
### Response:
0
### Explanation:
11. It is well nigh settled that a decision on an issue raised in a writ petition under Article 226 or Article 32 of the Constitution would also operate as res judicata between the same parties in subsequent judicial proceedings. The only exception is that the rule of res judicata would not operate to the detriment or impairment of a fundamental right.Though the said explanation may not stricto sensu apply to the trial stage, the principal couched in it must gain application thereto. It is immaterial that the writ petition was filed only subsequently because the findings made therein became final as no appeal was filed against the judgment.Thus, the legal position is clear and the respondent cannot now re-agitate the question regarding maintainability of the suit under Section 34 of the Act. However, learned counsel adopted an alternative contention before us that the suit is in effect one for specific enforcement of a contract and such a suit is not conceived under Section 14 of the Act and hence it is not maintainable. According to the learned counsel, the reliefs claimed in the suit, if granted, would result in specific enforcement of a contract of employment. Section 14(1)(a) of the Act makes it clear that a contract of employment is not specifically enforceable since non-performance of it can be compensated by money, contended the counsel.Though Specific Relief Act widens the spheres of the civil court its preamble shows that the Act is not exhaustive of all kinds of specific reliefs. " An Act to define and amend the law relating to certain kinds of specific relief." It is well to remember that the Act is not restricted to specific performance of contracts as the statute governs powers of the court in granting specific reliefs in a variety of fields. Even so, the Act does not cover all specific reliefs conceivable.
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SANTOSH CHATURVEDI Vs. KAILASH CHANDRA
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Shyam Bihari that all the averments are concocted and have been framed just to give colours to the matter, I am not satisfied with this argument. Because, the evidence has been filed on record that oral partition occurred on 15.11.1999 amongst Dwarka Prasad and his sons Vijay and Santosh Chaturvedi and his mother which was reduced in writing by a memorandum of family settlement dated 02.02.2000 which was confirmed by the decree of the original suit No.220/01. It is well settled law on this point that the partition can be oral and even written amongst the members of Hindu families. The Hindu Law is very much clear that if one coparcener expresses his desire for the partition then legally the partition/severance of the coparcenary property takes its effect from the same day i.e. from the day, coparcener had expressed his desire for the partition. 14. Though such detailed examination with regard to the nature of the right to the property has been made in the present case, we are of the opinion that the same was wholly unnecessary in a summary proceeding of the present nature when the tenant had not set up title to the premises in question. Irrespective of the fact as to whether the property was the coparcenary property or had become the absolute property of Shri Dwarka Prasad, the fact remains that a family settlement dated 15.11.1999 was entered into, to which Shri Dwarka Prasad who was the owner was himself a party and had given a portion of his property to his son. Pursuant to such oral family settlement dated 15.11.1999 a Memorandum dated 02.02.2000 was also drawn up. Subsequent thereto the appellant had also filed an Original Suit No.220/2001 seeking that the family settlement be declared as valid. The said suit was disposed of on 19.04.2001 based on the compromise. 15. Whether the share given by Shri Dwarka Prasad to the appellant who is his son is justified or as to whether the nature of the document under which the settlement was recorded was as per requirement of law and valid are all issues which can only be raised by any other member of the family who would feel deprived and could have claimed right over the such property. But in a circumstance where Shri Dwarka Prasad who admittedly was the owner of the property had made a settlement in favour of the appellant who is his son, the title thus acquired, in any event, cannot be called in question by the person who is in occupation of the premises as a tenant when Shri Dwarka Prasad who admittedly was his landlord did not continue to claim to be the landlord. If that be the position as rightly noticed by the Appellate Authority, in view of the provision as contained in Section 8 and Section 109 of Transfer of Property Act, on transfer of the property by the owner the tenant would automatically become the tenant of the transferee. The further observation of the Appellate Authority contained in its order to notice the relationship of landlord and tenant is as hereunder; ………………Even if, Shyam Bihari Lal has denied himself to be the tenant of the applicant, but here it is more important that another suit was pending amongst the parties for the eviction of tenant Shyam Bihari Lal where Shyam Bihari Lal had accepted himself to be the tenant of Santosh Chaturvedi and had deposited the rent on the first date of hearing of the suit and has also requested for extending the benefit of Section 20(4) of Act No.13 of 72, to him in that case. It will indicate that the respondents at this juncture cannot dispute the ownership of the appellant over the property or the jural relationship. 16. The aspect which is also necessary to be taken note is that the predecessor of the respondents late Shyam Bihari had initiated a proceeding in Suit No.113/2011 (Annexure R-12) before the Rent Control and Eviction Officer, Mathura wherein he had sought for allotment of alternate premises by indicating that the case bearing No.6/2010 had been initiated by the appellant herein against him. This would indicate that at the first instance, the predecessor of the respondents did not have any issue with regard to the ownership and was making an attempt to secure an alternate premises but has only thereafter raised the contention despite the relationship being indisputable. Therefore, taking into consideration all these aspects we are of the opinion that the view expressed by the Appellate Court is appropriate in the present facts and circumstance. 17. Having arrived at the above conclusion we have taken into consideration the nature of the claim made by the appellant for release of the property. From the evidence as tendered, the appellant had contended that he is doing wholesale business of cloth for which he does not have premises due to which he, his wife and two children are experiencing hardship. In a circumstance where there is no material available on record to indicate that the appellant has any other alternate premises, the bonafide need of the appellant as claimed will have to be accepted and even though the respondents would face some hardship, as compared to the same the hardship to be faced by the appellant would be greater if the premises is not released to the appellant. Though at this juncture the learned counsel for the respondents would submit that the alternate premises bearing No.83/9-C Chhatta Bazar, Mathura ordered to be made available to the respondents is not suitable, it is in fact an order made by the Appellate Court only in order to minimize the hardship. In that circumstance, if the said premises is not suitable, it is open to the respondents to not opt for the same. However, when the appellant has established that he is the owner of the property and the same is required for his bonafide occupation, the release of the premises in any event, is required to be made.
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1[ds]. However, keeping in view the fact that the High Court in the instant case while examining the matter had two views before it, one taken by the Prescribed Authority and the other by the Appellate Authority which were divergent, one of the views was required to be accepted by examining the matter in that regard. Therefore, in the instant facts if that aspect of the matter is taken note, since the Prescribed Authority while examining the claim of the appellant herein had adverted to the manner in which the claim of ownership was made to the property and had held that the appellant cannot be considered as a coparcener to be accepted as the landlord, the High Court has also made a consideration in that regard to accept such view9. In order to examine that aspect of the matter a perusal of the papers would indicate that at the first instance the father of the appellant Shri Dwarka Prasad had become the owner of the property under a partition deed dated 09.07.1959. In that capacity, the predecessor of the respondents was the tenant under him and the said Shri Dwarka Prasad instituted an eviction petition against the predecessor of the respondents on 10.03.1979. In the said proceedings there was no dispute whatsoever with regard to the ownership of the property or the jural relationship of landlord and tenant between the father of the appellant and the predecessor of the respondents. It is no doubt true that the father of the appellant had failed in the said proceedings and presently the Petition bearing No.6/2000 was instituted by the appellant, who is his son, claiming to be the owner of the property14. Though such detailed examination with regard to the nature of the right to the property has been made in the present case, we are of the opinion that the same was wholly unnecessary in a summary proceeding of the present nature when the tenant had not set up title to the premises in question. Irrespective of the fact as to whether the property was the coparcenary property or had become the absolute property of Shri Dwarka Prasad, the fact remains that a family settlement dated 15.11.1999 was entered into, to which Shri Dwarka Prasad who was the owner was himself a party and had given a portion of his property to his son. Pursuant to such oral family settlement dated 15.11.1999 a Memorandum dated 02.02.2000 was also drawn up. Subsequent thereto the appellant had also filed an Original Suit No.220/2001 seeking that the family settlement be declared as valid. The said suit was disposed of on 19.04.2001 based on the compromise15. Whether the share given by Shri Dwarka Prasad to the appellant who is his son is justified or as to whether the nature of the document under which the settlement was recorded was as per requirement of law and valid are all issues which can only be raised by any other member of the family who would feel deprived and could have claimed right over the such property. But in a circumstance where Shri Dwarka Prasad who admittedly was the owner of the property had made a settlement in favour of the appellant who is his son, the title thus acquired, in any event, cannot be called in question by the person who is in occupation of the premises as a tenant when Shri Dwarka Prasad who admittedly was his landlord did not continue to claim to be the landlord. If that be the position as rightly noticed by the Appellate Authority, in view of the provision as contained in Section 8 and Section 109 of Transfer of Property Act, on transfer of the property by the owner the tenant would automatically become the tenant of the transferee16. The aspect which is also necessary to be taken note is that the predecessor of the respondents late Shyam Bihari had initiated a proceeding in Suit No.113/2011 (Annexure R-12) before the Rent Control and Eviction Officer, Mathura wherein he had sought for allotment of alternate premises by indicating that the case bearing No.6/2010 had been initiated by the appellant herein against him. This would indicate that at the first instance, the predecessor of the respondents did not have any issue with regard to the ownership and was making an attempt to secure an alternate premises but has only thereafter raised the contention despite the relationship being indisputable. Therefore, taking into consideration all these aspects we are of the opinion that the view expressed by the Appellate Court is appropriate in the present facts and circumstance17. Having arrived at the above conclusion we have taken into consideration the nature of the claim made by the appellant for release of the property. From the evidence as tendered, the appellant had contended that he is doing wholesale business of cloth for which he does not have premises due to which he, his wife and two children are experiencing hardship. In a circumstance where there is no material available on record to indicate that the appellant has any other alternate premises, the bonafide need of the appellant as claimed will have to be accepted and even though the respondents would face some hardship, as compared to the same the hardship to be faced by the appellant would be greater if the premises is not released to the appellant. Though at this juncture the learned counsel for the respondents would submit that the alternate premises bearing No.83/9-C Chhatta Bazar, Mathura ordered to be made available to the respondents is not suitable, it is in fact an order made by the Appellate Court only in order to minimize the hardship. In that circumstance, if the said premises is not suitable, it is open to the respondents to not opt for the same. However, when the appellant has established that he is the owner of the property and the same is required for his bonafide occupation, the release of the premises in any event, is required to be made.
| 1 | 3,889 | 1,064 |
### 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:
Shyam Bihari that all the averments are concocted and have been framed just to give colours to the matter, I am not satisfied with this argument. Because, the evidence has been filed on record that oral partition occurred on 15.11.1999 amongst Dwarka Prasad and his sons Vijay and Santosh Chaturvedi and his mother which was reduced in writing by a memorandum of family settlement dated 02.02.2000 which was confirmed by the decree of the original suit No.220/01. It is well settled law on this point that the partition can be oral and even written amongst the members of Hindu families. The Hindu Law is very much clear that if one coparcener expresses his desire for the partition then legally the partition/severance of the coparcenary property takes its effect from the same day i.e. from the day, coparcener had expressed his desire for the partition. 14. Though such detailed examination with regard to the nature of the right to the property has been made in the present case, we are of the opinion that the same was wholly unnecessary in a summary proceeding of the present nature when the tenant had not set up title to the premises in question. Irrespective of the fact as to whether the property was the coparcenary property or had become the absolute property of Shri Dwarka Prasad, the fact remains that a family settlement dated 15.11.1999 was entered into, to which Shri Dwarka Prasad who was the owner was himself a party and had given a portion of his property to his son. Pursuant to such oral family settlement dated 15.11.1999 a Memorandum dated 02.02.2000 was also drawn up. Subsequent thereto the appellant had also filed an Original Suit No.220/2001 seeking that the family settlement be declared as valid. The said suit was disposed of on 19.04.2001 based on the compromise. 15. Whether the share given by Shri Dwarka Prasad to the appellant who is his son is justified or as to whether the nature of the document under which the settlement was recorded was as per requirement of law and valid are all issues which can only be raised by any other member of the family who would feel deprived and could have claimed right over the such property. But in a circumstance where Shri Dwarka Prasad who admittedly was the owner of the property had made a settlement in favour of the appellant who is his son, the title thus acquired, in any event, cannot be called in question by the person who is in occupation of the premises as a tenant when Shri Dwarka Prasad who admittedly was his landlord did not continue to claim to be the landlord. If that be the position as rightly noticed by the Appellate Authority, in view of the provision as contained in Section 8 and Section 109 of Transfer of Property Act, on transfer of the property by the owner the tenant would automatically become the tenant of the transferee. The further observation of the Appellate Authority contained in its order to notice the relationship of landlord and tenant is as hereunder; ………………Even if, Shyam Bihari Lal has denied himself to be the tenant of the applicant, but here it is more important that another suit was pending amongst the parties for the eviction of tenant Shyam Bihari Lal where Shyam Bihari Lal had accepted himself to be the tenant of Santosh Chaturvedi and had deposited the rent on the first date of hearing of the suit and has also requested for extending the benefit of Section 20(4) of Act No.13 of 72, to him in that case. It will indicate that the respondents at this juncture cannot dispute the ownership of the appellant over the property or the jural relationship. 16. The aspect which is also necessary to be taken note is that the predecessor of the respondents late Shyam Bihari had initiated a proceeding in Suit No.113/2011 (Annexure R-12) before the Rent Control and Eviction Officer, Mathura wherein he had sought for allotment of alternate premises by indicating that the case bearing No.6/2010 had been initiated by the appellant herein against him. This would indicate that at the first instance, the predecessor of the respondents did not have any issue with regard to the ownership and was making an attempt to secure an alternate premises but has only thereafter raised the contention despite the relationship being indisputable. Therefore, taking into consideration all these aspects we are of the opinion that the view expressed by the Appellate Court is appropriate in the present facts and circumstance. 17. Having arrived at the above conclusion we have taken into consideration the nature of the claim made by the appellant for release of the property. From the evidence as tendered, the appellant had contended that he is doing wholesale business of cloth for which he does not have premises due to which he, his wife and two children are experiencing hardship. In a circumstance where there is no material available on record to indicate that the appellant has any other alternate premises, the bonafide need of the appellant as claimed will have to be accepted and even though the respondents would face some hardship, as compared to the same the hardship to be faced by the appellant would be greater if the premises is not released to the appellant. Though at this juncture the learned counsel for the respondents would submit that the alternate premises bearing No.83/9-C Chhatta Bazar, Mathura ordered to be made available to the respondents is not suitable, it is in fact an order made by the Appellate Court only in order to minimize the hardship. In that circumstance, if the said premises is not suitable, it is open to the respondents to not opt for the same. However, when the appellant has established that he is the owner of the property and the same is required for his bonafide occupation, the release of the premises in any event, is required to be made.
### Response:
1
### Explanation:
keeping in view the fact that the High Court in the instant case while examining the matter had two views before it, one taken by the Prescribed Authority and the other by the Appellate Authority which were divergent, one of the views was required to be accepted by examining the matter in that regard. Therefore, in the instant facts if that aspect of the matter is taken note, since the Prescribed Authority while examining the claim of the appellant herein had adverted to the manner in which the claim of ownership was made to the property and had held that the appellant cannot be considered as a coparcener to be accepted as the landlord, the High Court has also made a consideration in that regard to accept such view9. In order to examine that aspect of the matter a perusal of the papers would indicate that at the first instance the father of the appellant Shri Dwarka Prasad had become the owner of the property under a partition deed dated 09.07.1959. In that capacity, the predecessor of the respondents was the tenant under him and the said Shri Dwarka Prasad instituted an eviction petition against the predecessor of the respondents on 10.03.1979. In the said proceedings there was no dispute whatsoever with regard to the ownership of the property or the jural relationship of landlord and tenant between the father of the appellant and the predecessor of the respondents. It is no doubt true that the father of the appellant had failed in the said proceedings and presently the Petition bearing No.6/2000 was instituted by the appellant, who is his son, claiming to be the owner of the property14. Though such detailed examination with regard to the nature of the right to the property has been made in the present case, we are of the opinion that the same was wholly unnecessary in a summary proceeding of the present nature when the tenant had not set up title to the premises in question. Irrespective of the fact as to whether the property was the coparcenary property or had become the absolute property of Shri Dwarka Prasad, the fact remains that a family settlement dated 15.11.1999 was entered into, to which Shri Dwarka Prasad who was the owner was himself a party and had given a portion of his property to his son. Pursuant to such oral family settlement dated 15.11.1999 a Memorandum dated 02.02.2000 was also drawn up. Subsequent thereto the appellant had also filed an Original Suit No.220/2001 seeking that the family settlement be declared as valid. The said suit was disposed of on 19.04.2001 based on the compromise15. Whether the share given by Shri Dwarka Prasad to the appellant who is his son is justified or as to whether the nature of the document under which the settlement was recorded was as per requirement of law and valid are all issues which can only be raised by any other member of the family who would feel deprived and could have claimed right over the such property. But in a circumstance where Shri Dwarka Prasad who admittedly was the owner of the property had made a settlement in favour of the appellant who is his son, the title thus acquired, in any event, cannot be called in question by the person who is in occupation of the premises as a tenant when Shri Dwarka Prasad who admittedly was his landlord did not continue to claim to be the landlord. If that be the position as rightly noticed by the Appellate Authority, in view of the provision as contained in Section 8 and Section 109 of Transfer of Property Act, on transfer of the property by the owner the tenant would automatically become the tenant of the transferee16. The aspect which is also necessary to be taken note is that the predecessor of the respondents late Shyam Bihari had initiated a proceeding in Suit No.113/2011 (Annexure R-12) before the Rent Control and Eviction Officer, Mathura wherein he had sought for allotment of alternate premises by indicating that the case bearing No.6/2010 had been initiated by the appellant herein against him. This would indicate that at the first instance, the predecessor of the respondents did not have any issue with regard to the ownership and was making an attempt to secure an alternate premises but has only thereafter raised the contention despite the relationship being indisputable. Therefore, taking into consideration all these aspects we are of the opinion that the view expressed by the Appellate Court is appropriate in the present facts and circumstance17. Having arrived at the above conclusion we have taken into consideration the nature of the claim made by the appellant for release of the property. From the evidence as tendered, the appellant had contended that he is doing wholesale business of cloth for which he does not have premises due to which he, his wife and two children are experiencing hardship. In a circumstance where there is no material available on record to indicate that the appellant has any other alternate premises, the bonafide need of the appellant as claimed will have to be accepted and even though the respondents would face some hardship, as compared to the same the hardship to be faced by the appellant would be greater if the premises is not released to the appellant. Though at this juncture the learned counsel for the respondents would submit that the alternate premises bearing No.83/9-C Chhatta Bazar, Mathura ordered to be made available to the respondents is not suitable, it is in fact an order made by the Appellate Court only in order to minimize the hardship. In that circumstance, if the said premises is not suitable, it is open to the respondents to not opt for the same. However, when the appellant has established that he is the owner of the property and the same is required for his bonafide occupation, the release of the premises in any event, is required to be made.
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STATE OF RAJASTHAN AND OTHERS Vs. RAJASTHAN ICE AND COLD STORAGE AND OTHERS
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1. Heard learned counsel for the parties. 2. It is stated that the respondent-firm, Rajasthan Ice and Cold Storage, Jodhpur, was, inter alia, carrying on the business of cold storage and in the writ petition filed before the High Court, it was contended that the goods storage was the process of refrigeration and, therefore, it was an industry entitled to be charged electricity duty at a reduced rate as per the notification dated November 1, 1965. That petition was allowed. Hence, this appeal. 3. The issue involved in this appeal is covered by the decision of this court rendered in Delhi Cold Storage Pvt. Ltd. Vs. Commissioner of Income Tax, New Delhi, . In that case, the court considered the question-whether the respondent-company can be held to be an industrial company for the purpose of Section 2(7)(c) of the Finance Act, 1973. After considering the various decisions and the definition of industrial company as defined u/s 2(7)(c) of the Finance Act, the court observed that the company should be, inter alia, engaged in process of goods. The court thereafter held that in a cold storage, vegetables, fruits and several other articles which require preservation by refrigeration are stored. As a result of long storage, scientific examination may indicate loss of moisture content, that is not sufficient for holding that the stored articles have undergone a process and hence not an industrial company. 4. In Rajasthan State Electricity Board Vs. Associated Stone Industries and Another, , dealing with the notifications in question, this court held that the word manufacture used in the notifications should be understood in its commercial sense in the absence of definition in the statute itself. In that case, the question involved was energy consumed for pumping out water from the mines and the court held that it cannot be held to be manufacturing activity.
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1[ds]3. The issue involved in this appeal is covered by the decision of this court rendered in Delhi Cold Storage Pvt. Ltd. Vs. Commissioner of Income Tax, New Delhi, . In that case, the court considered the question-whether the respondent-company can be held to be an industrial company for the purpose of Section 2(7)(c) of the Finance Act, 1973. After considering the various decisions and the definition of industrial company as defined u/s 2(7)(c) of the Finance Act, the court observed that the company should be, inter alia, engaged in process of goods. The court thereafter held that in a cold storage, vegetables, fruits and several other articles which require preservation by refrigeration are stored. As a result of long storage, scientific examination may indicate loss of moisture content, that is not sufficient for holding that the stored articles have undergone a process and hence not an industrial company.4. In Rajasthan State Electricity Board Vs. Associated Stone Industries and Another, , dealing with the notifications in question, this court held that the word manufacture used in the notifications should be understood in its commercial sense in the absence of definition in the statute itself. In that case, the question involved was energy consumed for pumping out water from the mines and the court held that it cannot be held to be manufacturing activity.
| 1 | 360 | 263 |
### 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. Heard learned counsel for the parties. 2. It is stated that the respondent-firm, Rajasthan Ice and Cold Storage, Jodhpur, was, inter alia, carrying on the business of cold storage and in the writ petition filed before the High Court, it was contended that the goods storage was the process of refrigeration and, therefore, it was an industry entitled to be charged electricity duty at a reduced rate as per the notification dated November 1, 1965. That petition was allowed. Hence, this appeal. 3. The issue involved in this appeal is covered by the decision of this court rendered in Delhi Cold Storage Pvt. Ltd. Vs. Commissioner of Income Tax, New Delhi, . In that case, the court considered the question-whether the respondent-company can be held to be an industrial company for the purpose of Section 2(7)(c) of the Finance Act, 1973. After considering the various decisions and the definition of industrial company as defined u/s 2(7)(c) of the Finance Act, the court observed that the company should be, inter alia, engaged in process of goods. The court thereafter held that in a cold storage, vegetables, fruits and several other articles which require preservation by refrigeration are stored. As a result of long storage, scientific examination may indicate loss of moisture content, that is not sufficient for holding that the stored articles have undergone a process and hence not an industrial company. 4. In Rajasthan State Electricity Board Vs. Associated Stone Industries and Another, , dealing with the notifications in question, this court held that the word manufacture used in the notifications should be understood in its commercial sense in the absence of definition in the statute itself. In that case, the question involved was energy consumed for pumping out water from the mines and the court held that it cannot be held to be manufacturing activity.
### Response:
1
### Explanation:
3. The issue involved in this appeal is covered by the decision of this court rendered in Delhi Cold Storage Pvt. Ltd. Vs. Commissioner of Income Tax, New Delhi, . In that case, the court considered the question-whether the respondent-company can be held to be an industrial company for the purpose of Section 2(7)(c) of the Finance Act, 1973. After considering the various decisions and the definition of industrial company as defined u/s 2(7)(c) of the Finance Act, the court observed that the company should be, inter alia, engaged in process of goods. The court thereafter held that in a cold storage, vegetables, fruits and several other articles which require preservation by refrigeration are stored. As a result of long storage, scientific examination may indicate loss of moisture content, that is not sufficient for holding that the stored articles have undergone a process and hence not an industrial company.4. In Rajasthan State Electricity Board Vs. Associated Stone Industries and Another, , dealing with the notifications in question, this court held that the word manufacture used in the notifications should be understood in its commercial sense in the absence of definition in the statute itself. In that case, the question involved was energy consumed for pumping out water from the mines and the court held that it cannot be held to be manufacturing activity.
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VIDHI HIMMAT KATARIYA Vs. THE STATE OF GUJARAT
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Medical Appellate Board and even the Medical Board of AIIMS, New Delhi have opined that the respective petitioners are not eligible for admission in MBBS course, the respective petitioners are rightly denied admission in the MBBS course under PwD quota.5.3 Now so far as the submission on behalf of the petitioners that notification dated 04.02.2019 shall not be applicable and the erstwhile Regulations shall be applicable and the relevant date should be the date on which the process for admission has started, i.e., in the month of November, 2018, it is vehemently submitted that the relevant date for eligibility criteria would be the date on which the petitioners were to get admission. It is submitted therefore that the date on which the petitioners applied for admission in medical course under PwD quota and appeared before the Medical Board, that should be the relevant date and the notification came into force on 04.02.2019, the same shall be applicable.5.4 Making the above submissions, it is prayed to dismiss the present writ petitions.6. We have heard the learned counsel for the respective parties at length.6.1 The respective petitioners are suffering from locomotor disability and they are seeking admission in the MBBS course under PwD category. As per notification dated 04.02.2019 and Appendix ‘H? – Guidelines regarding admission of students with ‘Specified Disabilities? under the 2016 Act with respect to admission in MBBS course, a candidate suffering from locomotor disability of less than 40% shall be eligible to pursue MBBS course but not eligible to be granted the benefit of reservation under PwD quota. It further provides that ‘both hands intact, with intact sensation, sufficient strength and range of motion? are essential to be considered eligible for medical course. As per the opinion of the Medical Board, Medical Appellate Board and even the Medical Board of AIIMS, New Delhi, the respective petitioners are not eligible for admission in MBBS course under PwD quota as they do not fulfil the essential criteria to be fulfilled as per Appendix ‘H?. Therefore, as such, the respective petitioners are not fulfilling the essential eligibility criteria provided as per Appendix ‘H? and therefore they are not eligible for admission in the medical course under PwD quota.7. It is mainly contended on behalf of the petitioners and it is submitted by the learned counsel appearing on behalf of the petitioners that the NEET UG 2019 brochure was released on 01.11.2018 and the notification amending Regulations, 1997 whereby Appendix ‘H? is added to the erstwhile Regulations, 2017 has been issued on 04.02.2019, the case of the petitioners are required to be considered as per the provisions prior to 04.02.2019 and more particularly prevailing as on 01.11.2018. The aforesaid has no substance. The relevant essential eligibility criteria is required to be considered when the petitioners were to get admission in the MBBS course under PwD quota. It is required to be noted and so stated in the reply affidavit filed on behalf of the MCI that the Expert Committee submitted the report –?Guidelines for admission of persons with Specified Disabilities?, which was placed before the Executive Committee of the Council in its meeting held on 5.6.2018 wherein after due discussion and deliberations it was decided to approve the same. It was also decided that the said Expert Committee Report should be communicated to the Ministry of Health & Family Welfare in view of the schedule for counselling for admission to MBBS course for the academic year 2018-19. However, for admission for the academic year 2018-19, it was at the stage of a draft notification and the Graduate Medical Education Regulations, 1997 were not amended in light of the recommendations of the Expert Committee constituted by the MCI which has issued the Disability Guidelines, this Court directed to give admission as per the unamended Graduate Medical Education Regulations, 1997. However subsequently and before the admission for the academic year 2019-20 are given, notification dated 04.02.2019 has been published and the Graduate Medical Education Regulations, 1997 have been amended, as above. Therefore, in the facts and circumstances of the case, it cannot be said that ‘Rules of the game are changed midway?, as sought to be contended on behalf of the petitioners. As observed hereinabove, the essential eligibility criteria as per Appendix ‘H? is required to be considered at the time when the candidates were seeking admission in the medical course under PwD category. It is also required to be noted that even the candidates seeking admission in PwD quota are required to appear before the concerned Medical Board at the time of actually seeking admission and after NEET result is declared. Therefore, the relevant date for considering the essential eligibility criteria as per Appendix ‘H? shall be the date on which the candidates – petitioners sought admission in the MBBs course under PwD quota. Much prior thereto, notification dated 4.2.2019 has been issued and published and therefore the respective petitioners shall be governed by notification dated 04.02.2019.8. Now so far as the submission on behalf of the petitioners that while denying admission to the petitioners the State Government and/or authorities have not considered the relevant parameters and have not considered that the respective petitioners are able to perform well is concerned, it is required to be noted that in the present case all the expert bodies including the Medical Board, Medical Appellate Board and even the Medical Board of AIIMS, New Delhi consisting of the experts have opined against the petitioners and their cases are considered in light of the relevant essential eligibility criteria as mentioned in Appendix ‘H? – ‘Both hands intact, with intact sensation, sufficient strength and range of motion?. Therefore, when the experts in the field have opined against the petitioners, the Court would not be justified in sitting over as an appellate authority against the opinion formed by the experts – in the present case, the Medical Board, Medical Appellate Board and the Medical Board of AIIMS, New Delhi, more particularly when there are no allegations of mala fides.
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0[ds]7. It is mainly contended on behalf of the petitioners and it is submitted by the learned counsel appearing on behalf of the petitioners that the NEET UG 2019 brochure was released on 01.11.2018 and the notification amending Regulations, 1997 whereby Appendix ‘H? is added to the erstwhile Regulations, 2017 has been issued on 04.02.2019, the case of the petitioners are required to be considered as per the provisions prior to 04.02.2019 and more particularly prevailing as on 01.11.2018. The aforesaid has no substance. The relevant essential eligibility criteria is required to be considered when the petitioners were to get admission in the MBBS course under PwD quota. It is required to be noted and so stated in the reply affidavit filed on behalf of the MCI that the Expert Committee submitted the report –?Guidelines for admission of persons with Specified Disabilities?, which was placed before the Executive Committee of the Council in its meeting held on 5.6.2018 wherein after due discussion and deliberations it was decided to approve the same. It was also decided that the said Expert Committee Report should be communicated to the Ministry of Health & Family Welfare in view of the schedule for counselling for admission to MBBS course for the academic year 2018-19. However, for admission for the academic year 2018-19, it was at the stage of a draft notification and the Graduate Medical Education Regulations, 1997 were not amended in light of the recommendations of the Expert Committee constituted by the MCI which has issued the Disability Guidelines, this Court directed to give admission as per the unamended Graduate Medical Education Regulations, 1997. However subsequently and before the admission for the academic year 2019-20 are given, notification dated 04.02.2019 has been published and the Graduate Medical Education Regulations, 1997 have been amended, as above. Therefore, in the facts and circumstances of the case, it cannot be said that ‘Rules of the game are changed midway?, as sought to be contended on behalf of the petitioners. As observed hereinabove, the essential eligibility criteria as per Appendix ‘H? is required to be considered at the time when the candidates were seeking admission in the medical course under PwD category. It is also required to be noted that even the candidates seeking admission in PwD quota are required to appear before the concerned Medical Board at the time of actually seeking admission and after NEET result is declared. Therefore, the relevant date for considering the essential eligibility criteria as per Appendix ‘H? shall be the date on which the candidates – petitioners sought admission in the MBBs course under PwD quota. Much prior thereto, notification dated 4.2.2019 has been issued and published and therefore the respective petitioners shall be governed by notification dated 04.02.2019.8. Now so far as the submission on behalf of the petitioners that while denying admission to the petitioners the State Government and/or authorities have not considered the relevant parameters and have not considered that the respective petitioners are able to perform well is concerned, it is required to be noted that in the present case all the expert bodies including the Medical Board, Medical Appellate Board and even the Medical Board of AIIMS, New Delhi consisting of the experts have opined against the petitioners and their cases are considered in light of the relevant essential eligibility criteria as mentioned in Appendix ‘H? – ‘Both hands intact, with intact sensation, sufficient strength and range of motion?. Therefore, when the experts in the field have opined against the petitioners, the Court would not be justified in sitting over as an appellate authority against the opinion formed by the experts – in the present case, the Medical Board, Medical Appellate Board and the Medical Board of AIIMS, New Delhi, more particularly when there are no allegations of malaper the opinion of the Medical Board, Medical Appellate Board and even the Medical Board of AIIMS, New Delhi, the respective petitioners are not eligible for admission in MBBS course under PwD quota as they do not fulfil the essential criteria to be fulfilled as per Appendix ‘H?. Therefore, as such, the respective petitioners are not fulfilling the essential eligibility criteria provided as per Appendix ‘H? and therefore they are not eligible for admission in the medical course under PwD quota.
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### 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:
Medical Appellate Board and even the Medical Board of AIIMS, New Delhi have opined that the respective petitioners are not eligible for admission in MBBS course, the respective petitioners are rightly denied admission in the MBBS course under PwD quota.5.3 Now so far as the submission on behalf of the petitioners that notification dated 04.02.2019 shall not be applicable and the erstwhile Regulations shall be applicable and the relevant date should be the date on which the process for admission has started, i.e., in the month of November, 2018, it is vehemently submitted that the relevant date for eligibility criteria would be the date on which the petitioners were to get admission. It is submitted therefore that the date on which the petitioners applied for admission in medical course under PwD quota and appeared before the Medical Board, that should be the relevant date and the notification came into force on 04.02.2019, the same shall be applicable.5.4 Making the above submissions, it is prayed to dismiss the present writ petitions.6. We have heard the learned counsel for the respective parties at length.6.1 The respective petitioners are suffering from locomotor disability and they are seeking admission in the MBBS course under PwD category. As per notification dated 04.02.2019 and Appendix ‘H? – Guidelines regarding admission of students with ‘Specified Disabilities? under the 2016 Act with respect to admission in MBBS course, a candidate suffering from locomotor disability of less than 40% shall be eligible to pursue MBBS course but not eligible to be granted the benefit of reservation under PwD quota. It further provides that ‘both hands intact, with intact sensation, sufficient strength and range of motion? are essential to be considered eligible for medical course. As per the opinion of the Medical Board, Medical Appellate Board and even the Medical Board of AIIMS, New Delhi, the respective petitioners are not eligible for admission in MBBS course under PwD quota as they do not fulfil the essential criteria to be fulfilled as per Appendix ‘H?. Therefore, as such, the respective petitioners are not fulfilling the essential eligibility criteria provided as per Appendix ‘H? and therefore they are not eligible for admission in the medical course under PwD quota.7. It is mainly contended on behalf of the petitioners and it is submitted by the learned counsel appearing on behalf of the petitioners that the NEET UG 2019 brochure was released on 01.11.2018 and the notification amending Regulations, 1997 whereby Appendix ‘H? is added to the erstwhile Regulations, 2017 has been issued on 04.02.2019, the case of the petitioners are required to be considered as per the provisions prior to 04.02.2019 and more particularly prevailing as on 01.11.2018. The aforesaid has no substance. The relevant essential eligibility criteria is required to be considered when the petitioners were to get admission in the MBBS course under PwD quota. It is required to be noted and so stated in the reply affidavit filed on behalf of the MCI that the Expert Committee submitted the report –?Guidelines for admission of persons with Specified Disabilities?, which was placed before the Executive Committee of the Council in its meeting held on 5.6.2018 wherein after due discussion and deliberations it was decided to approve the same. It was also decided that the said Expert Committee Report should be communicated to the Ministry of Health & Family Welfare in view of the schedule for counselling for admission to MBBS course for the academic year 2018-19. However, for admission for the academic year 2018-19, it was at the stage of a draft notification and the Graduate Medical Education Regulations, 1997 were not amended in light of the recommendations of the Expert Committee constituted by the MCI which has issued the Disability Guidelines, this Court directed to give admission as per the unamended Graduate Medical Education Regulations, 1997. However subsequently and before the admission for the academic year 2019-20 are given, notification dated 04.02.2019 has been published and the Graduate Medical Education Regulations, 1997 have been amended, as above. Therefore, in the facts and circumstances of the case, it cannot be said that ‘Rules of the game are changed midway?, as sought to be contended on behalf of the petitioners. As observed hereinabove, the essential eligibility criteria as per Appendix ‘H? is required to be considered at the time when the candidates were seeking admission in the medical course under PwD category. It is also required to be noted that even the candidates seeking admission in PwD quota are required to appear before the concerned Medical Board at the time of actually seeking admission and after NEET result is declared. Therefore, the relevant date for considering the essential eligibility criteria as per Appendix ‘H? shall be the date on which the candidates – petitioners sought admission in the MBBs course under PwD quota. Much prior thereto, notification dated 4.2.2019 has been issued and published and therefore the respective petitioners shall be governed by notification dated 04.02.2019.8. Now so far as the submission on behalf of the petitioners that while denying admission to the petitioners the State Government and/or authorities have not considered the relevant parameters and have not considered that the respective petitioners are able to perform well is concerned, it is required to be noted that in the present case all the expert bodies including the Medical Board, Medical Appellate Board and even the Medical Board of AIIMS, New Delhi consisting of the experts have opined against the petitioners and their cases are considered in light of the relevant essential eligibility criteria as mentioned in Appendix ‘H? – ‘Both hands intact, with intact sensation, sufficient strength and range of motion?. Therefore, when the experts in the field have opined against the petitioners, the Court would not be justified in sitting over as an appellate authority against the opinion formed by the experts – in the present case, the Medical Board, Medical Appellate Board and the Medical Board of AIIMS, New Delhi, more particularly when there are no allegations of mala fides.
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0
### Explanation:
7. It is mainly contended on behalf of the petitioners and it is submitted by the learned counsel appearing on behalf of the petitioners that the NEET UG 2019 brochure was released on 01.11.2018 and the notification amending Regulations, 1997 whereby Appendix ‘H? is added to the erstwhile Regulations, 2017 has been issued on 04.02.2019, the case of the petitioners are required to be considered as per the provisions prior to 04.02.2019 and more particularly prevailing as on 01.11.2018. The aforesaid has no substance. The relevant essential eligibility criteria is required to be considered when the petitioners were to get admission in the MBBS course under PwD quota. It is required to be noted and so stated in the reply affidavit filed on behalf of the MCI that the Expert Committee submitted the report –?Guidelines for admission of persons with Specified Disabilities?, which was placed before the Executive Committee of the Council in its meeting held on 5.6.2018 wherein after due discussion and deliberations it was decided to approve the same. It was also decided that the said Expert Committee Report should be communicated to the Ministry of Health & Family Welfare in view of the schedule for counselling for admission to MBBS course for the academic year 2018-19. However, for admission for the academic year 2018-19, it was at the stage of a draft notification and the Graduate Medical Education Regulations, 1997 were not amended in light of the recommendations of the Expert Committee constituted by the MCI which has issued the Disability Guidelines, this Court directed to give admission as per the unamended Graduate Medical Education Regulations, 1997. However subsequently and before the admission for the academic year 2019-20 are given, notification dated 04.02.2019 has been published and the Graduate Medical Education Regulations, 1997 have been amended, as above. Therefore, in the facts and circumstances of the case, it cannot be said that ‘Rules of the game are changed midway?, as sought to be contended on behalf of the petitioners. As observed hereinabove, the essential eligibility criteria as per Appendix ‘H? is required to be considered at the time when the candidates were seeking admission in the medical course under PwD category. It is also required to be noted that even the candidates seeking admission in PwD quota are required to appear before the concerned Medical Board at the time of actually seeking admission and after NEET result is declared. Therefore, the relevant date for considering the essential eligibility criteria as per Appendix ‘H? shall be the date on which the candidates – petitioners sought admission in the MBBs course under PwD quota. Much prior thereto, notification dated 4.2.2019 has been issued and published and therefore the respective petitioners shall be governed by notification dated 04.02.2019.8. Now so far as the submission on behalf of the petitioners that while denying admission to the petitioners the State Government and/or authorities have not considered the relevant parameters and have not considered that the respective petitioners are able to perform well is concerned, it is required to be noted that in the present case all the expert bodies including the Medical Board, Medical Appellate Board and even the Medical Board of AIIMS, New Delhi consisting of the experts have opined against the petitioners and their cases are considered in light of the relevant essential eligibility criteria as mentioned in Appendix ‘H? – ‘Both hands intact, with intact sensation, sufficient strength and range of motion?. Therefore, when the experts in the field have opined against the petitioners, the Court would not be justified in sitting over as an appellate authority against the opinion formed by the experts – in the present case, the Medical Board, Medical Appellate Board and the Medical Board of AIIMS, New Delhi, more particularly when there are no allegations of malaper the opinion of the Medical Board, Medical Appellate Board and even the Medical Board of AIIMS, New Delhi, the respective petitioners are not eligible for admission in MBBS course under PwD quota as they do not fulfil the essential criteria to be fulfilled as per Appendix ‘H?. Therefore, as such, the respective petitioners are not fulfilling the essential eligibility criteria provided as per Appendix ‘H? and therefore they are not eligible for admission in the medical course under PwD quota.
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State Of Bihar Vs. Upendra Narayan Singh
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order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination." In Faridabad CT. Scan Centre v. D.G. Health Services (supra), a three-Judge Bench overruled the earlier decision of a two Judge Bench in Mediwell Hospital & Health Care (P) Ltd. v. Union of India and others [(1997) 1 SCC 759] and held: "Article 14 cannot be invoked in cases where wrong orders are issued in favour of others. Wrong orders cannot be perpetuated with the help of Article 14 on the basis that such wrong orders were earlier passed in favour of some other persons and that, therefore, there will be discrimination against others if correct orders are passed against them. The benefit of the exemption notification, in the present case, cannot, therefore, be extended to the petitioner on the ground that such benefit has been wrongly extended to others." The above principles were extended to the judgment of the Court in State of Bihar v. Kameshwar Prasad Singh (supra) wherein this Court held as under: "The concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals, others cannot claim the same illegality or irregularity on the ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits." [emphasis added]In State of Haryana v. Ram Kumar Mann (supra), this Court ruled that the High Court was not right in issuing a mandamus to the State to allow the petitioner to withdraw his resignation merely because in another case such a course as adopted. Some of the observations made in that case, which are quite instructive, are extracted below: "The doctrine of discrimination is founded upon existence of an enforceable right. He was discriminated and denied equality as some similarly situated persons had been given the same relief. Article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstanced without any rational basis or relationship in that behalf. The respondent has no right, whatsoever and cannot be given the relief wrongly given to them, i.e., benefit of withdrawal of resignation. The High Court was wholly wrong in reaching the conclusion that there was invidious discrimination. If we cannot allow a wrong to perpetrate, an employee, after committing misappropriation of money, is dismissed from service and subsequently that order is withdrawn and he is reinstated into the service. Can a similarly circumstanced person claim equality under Section 14 for reinstatement? The answer is obviously `No. In a converse case, in the first instance, one may be wrong but the wrong order cannot be the foundation for claiming equality for enforcement of the same order. As stated earlier, his right must be founded upon enforceable right to entitle him to the equality treatment for enforcement thereof. A wrong decision by the Government does not give a right to enforce the wrong order and claim parity or equality. Two wrongs can never make a right." In Union of India v. International Trading Co. (supra), the Court reiterated that Article 14 does not comprehend negative equality and observed: "What remains now to be considered, is the effect of permission granted to the thirty two vessels. As highlighted by learned counsel for the appellants, even if it is accepted that there was any improper permission, that may render such permissions vulnerable so far as the thirty two vessels are concerned, but it cannot come to the aid of the respondents. It is not necessary todeal with that aspect because two wrongs do not make one right. A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution of India (in short "the Constitution") cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the respondents cannot strengthen their case. They have to establish strength of their case on some other basis and not by claiming negative equality." In Directorate of Film Festivals and others v. Gaurav Ashwin Jain and others (supra), a two-Judge Bench, after making a reference to the judgments in Jagjit Singhs case and Gursharan Singhs case, observed: "When a grievance of discrimination is made, the High Court cannot just examine whether someone similarly situated has been granted a relief or benefit and then automatically direct grant of such relief or benefit to the person aggrieved. The High Court has to first examine whether the petitioner who has approached the court has established a right, entitling him to the relief sought on the facts and circumstances of the case. In the context of such examination, the fact that some others, who are similarly situated, have been granted relief which the petitioner is seeking, may be of some relevance. But where in law, a writ petitioner has not established a right or is not entitled to relief, the fact that a similarly situated person has been illegally granted relief, is not a ground to direct similar relief to him. That would be enforcing a negative equality by perpetuation of an illegality which is impermissible in law."
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0[ds]31. In our opinion, there is no merit in the submission of the learned senior counsel. If the initial appointments of the respondents are found to be illegal per se, the direction given by the High Court for their reinstatement with consequential benefits cannot be approved by relying upon the so-called regularization of their services. Had the respondents been appointed by the competent authority after issuing an advertisement or sending requisition to the employment exchange so as to enable the latter to sponsor the names of eligible persons then they would have certainly produced the relevant documents before the High Court or at least before this Court. However, the fact of the matter is that none of the documents which could give a semblance of legitimacy to the appointments of the respondents was produced before the High Court and none has been produced before this Court. The report of enquiry held against Dr. Darogi Razak, the then Regional Director, Gaya (a copy of the report has been placed before this Court in the form of additional document) bears ample testimony of manipulations made by the officer in making appointment on Class III and Class IV posts. So much so, with a view to remove every trace of the illegality committed by him, Dr. Darogi Razak ensured disappearance of all the papers relating to appointment from his office. A reading of the enquiry report shows that in all the following five charges were leveled against Dr. DarogiNo.1: You while working as Regional Director, Animal Husbandry, Gaya had made irregular appointments of 61 persons on 23 Class-3 posts and 61 Class-4 posts. As such, the State Funds were misused/wasted on salary, allowances, etc. of the personnel appointed irregularly.Charge No.2: You while working as Regional Director, Animal Husbandry, Gaya, made appointments on Sate Level posts (such as Milk Recorder (Dugadh Abhilekhak), Poultry Attendant (Kukkoot Sahayak), Statistics Teller (Sankhiyaki Ganak), Progress Assistant (Pragati Sahayak, etc.) whereas Regional Directors had no power to make such appointments. Director, Animal Husbandy is only competent to make appointments to such posts.Charge No.3: You adopted the practice of appointment of four or less than four persons at one go for which it is not necessary to give advertisement in the newspapers, but as per Roster, requisition to call for names from Employment Exchange is mandatory. However, you have not complied with this rule.Charge No.4: You also appointed persons in excess of sanctioned strength.Charge No.5: The relevant records regarding appointments are not available in the office. In this connection, this fact has come to notice that these records have been removed/misplaced at yourOfficer who conducted the enquiry considered the documents produced by the departmental representative and the charged officer, arguments advanced by them, analyzed the entire evidence and concluded that charge No. 1 is partly proved, charges No. 2 and 3 are fully proved, charge No. 4 is not proved and charge No. 5 is partly proved. The analysis of charges No. 1 to 3 and charge No. 5 made by the Inquiry Officer is worth noticing. The same reads asNo. 1 to 3:- In the analyses of three charges under consideration, firstly it was seen that how much proof has been made available by the department regarding appointments made by the charged officer. As has been shown in detail under heading `evidence hereinabove, number of appointment letters issued by the charged officers comes near around 54 and it may vary by two three less or more. Practical problems were faced in working out exact number of appointment letters because many appointment letters were not readable to such extent that no clear conclusion could be arrived at as to whether this is second copy of some other appointment letter or it contain any other order.These appointment letters were casually perused. Some important facts emerged from such perusal. The details of appointment letters issued with No.M.Camp were found as under: -S. No.Letter No.DateName of person appointedCategory1.14/M. Camp, Nabada9.5.89Raj Kumar RajakClass-42.12/M. Camp, Nabada9.5.89Ashok Kumar RajakClass-43.15/M. Camp, Nabada9.5.89Illeg.Class-44.21/M. Camp, Nabada3.5.90Sunil PrasadClass-45.16/M. Camp, Nabada19.3.90Kailash RajakClass-46.95/Camp, Jahanabad26.5.90Onkar Kumar SinghClass-47.266/Camp, Aurangabad17.2.90Arun Kumar SinghClass-4The following appointment letters have been issued with Issue No."Con.", which is normally used for confidential correspondence, and use of the same in normal course in the office is not desired in the interest of work. Using such issue No. for appointment letter has practically no justification.123451.3/Con.30.4.91Raj Kishore GuptaClass-42.5/Con.10.6.91Madhuri RamClass-43.26/Con.27.10.91Shyam Pyare SinghClass-44.25/Con.27.10.91Upender Kumar Singh Prasannjeet Kumar SinghClass-45.22/Con.27.10.91Sanjay Kumar SinghClass-46.16/Con.25.10.91Satrughan Sah Sahender Prasad SinghClass-47.15/Con.24.10.91Ramji Ravi Das Anil Kumar SinghClass-48.6/Con.2.7.91Raj Kishore SinghClass-49.8/Con.19.12.90Ram Pyare SinghClass-410.7/Con.10.12.90Ram Bachan Singh Pawan KumarClass-411.11/Con.1.2.89Ganesh RajakClass-312.13/Con.2.2.89Ajay Prakash Diwakar—Following appointment letters were found which have been issued putting both i.e. "Con." AndSadar, Gaya21.8.90Raghvendra Narain Vijay KumarClass-4 Class-42.3/Con./Camp- Sadar, Gaya3.1.90Pandey Amar KumarClass-43.6/Con./Camp- Sadar, Gaya3.8.90Mithlesh Kumar Suman Ashok Kumar AbhayClass-4 Class-44.8/Con./Camp- Sadar, Gaya2.9.90Mahender Kumar Yadav Pankaj KumarClass-4 Class-4In the following appointment letters, there does not appear any relation between Issue Nos. and Date, for example, Issue No. like 1,2,3 have been put in ninth and tenth month of the year:-123451.118.9.91Anand Mohan SinghClass-42.218.9.91Gaya PrasadClass-43.322.10.91Sudama SinghClass-4The specific feature of all the above seven appointment letters is that in all these the charged officer has this or that way ordered to one Clerk of Sadar, Gaya named Shri Avadesh Prasad that issue these from the Confidential Issue Register of Sub Divisional Animal Husbandry Officer, Sadar, Gaya. There is strong possibility arises from this that naturally no one was interested to issue such letters otherwise such a senior officer would have not faced such a situation of giving such written order to a clerk only for issue of letters.The importance of above letters is more clear on perusal of some of the remaining letters because as an exception, some letters have also been issued with Nos. as given below:-123451.423Illeg.1. Illeg.Class-32. Illeg.Class-32.9784.7.91Girija YadavClass-33.913Illeg.Jan Vikas Kumar ChaudharyClass-34.161615.11.91Mahender Prasad SinghClass-45.14679.10.91Upender Narain SinghClass-46.14321.10.91Sunil KumarClass-4Bharat Kumar SinghClass-47.22128.6.89Munender Kumar BhartiClass-48.136511.9.91Megh Nath SahClass-4It remains a matter of surprise that when some letters could be shown to have been issued from office in a normal routine manner, then what is the need of issuing other appointment letters in huge numbers by sometime putting "Confidential", sometime putting "Mukhya (Hq.)" and sometime putting "Camp" and sometime by both "Camp" and "Confidential" contradictory and un-matched Nos. No satisfactory reply to this is found anywhere during the course of hearing.In some cases, it also appears to be very unnatural that charged officer was Regional Director and his headquarter was also Gaya but showing office of Animal Husbandry Officer of Sadar Sub. Division, Gaya as "Camp", letters were got issued from there. Any need of getting issued letters using "Camp" is not understandable. When the office of charged officer was itself in Gaya, and when any letter whatsoever was to be got issued, there would have been no difficulty for him to get it issued from his own office itself. Merely for the reason that he is not sitting in Officer chamber and in fact is present in the officer of Sub Divisional Animal Husbandry Officer, justification of issue of letter from camp is difficult to understand.Regarding letters issued from "Camp", this is also another issue for consideration that such letters are normally issued under such circumstances wherein it is necessary to issue the letter immediately. Any such emergent situation could not have been in appointment like matters. There is no reason to think that if charged officer had got the appointment letter issued even after returning to his office, the work would have suffered immensely. Nature of letters is not such that the subject matter could be considered to be fit for issue from "camp".It can also be easily understood with regard to letters issued by putting different Issue Nos. that for some reasons the charged officer had considered it not proper to allow those letters pass through many hands in the office, hence separate Serial No. used for getting those issued. Even on seeing the available Nos. it is clear that no other particular correspondence used to be done by using this "Con." Issue Register from which only these appointment letters have been issued, because Issue Nos. are of very less units/digits. In very few instances/examples, the No. has come in double digit. A question mark arises on Year-wise maintenance of such Register - which is natural.Now this question also arises that had charged officer had taken all the actions as per rules, then why such situation cropped up that unnatural Issue Nos. had to be put on the appointment letters which are generally used for keeping those letters out of the sight of office. Charged Officer even otherwise has been merely giving his statement regarding following procedure of appointment that he had done such and such. During the course of following procedure, many records and correspondence/files are created/originated such as calling for information of vacancies, taking decision on the requirement for appointments, preparing reservation roster and maintenance of the same in the Roster Register, classification of available appointments as per Roster, notifying the vacancies to the employment exchange or newspapers, inviting applications, following procedure for registration of applications, thereafter examination of applications as per qualifications, holding meetings of Selection Committee, issue of minutes and issue of appointment letters after completion of work. All these documents going missing appear to be impossible. By merely saying that he followed procedure does not become clear proof that he had done so. In fact, contrary position appears to be more reliable from the statements given by his successors and officials of his office. There are sufficient grounds to hold that the charged officer has not followed the procedure in appointment.Charge No. (5): - Here position is not such in which any file related to appointment was ever seen by anyone. No one has made such admission in his statement. The appointment letters issued by the charged officer himself do not bear any File No. It is correct for the charged officer to state that it is the duty of the office and concerned clerk to maintain File Record Register etc. If charged officer take shelter of this technical argument, then he shall also be bound to take this responsibility that he should have seen that other files submitted to him with other documents related to appointment bear file No. and that at the time of issuing fair copy of letters, File Nos. are mentioned on the letters issued from that file. Normally, an officer who depends and rely on such defence is also supposed to take much more care and vigil. During the course of analyses under charge No.1 to 3, many such letters have been referred in which some unnatural type of Issue Nos. have been given. There are number of such letters on which Issue No. "Con." has been given. The charged officer cannot naturally put liability on his office for whatever file maintained for issue of such letters. This question is altogether different that why letters were got issued by putting Issue No. "Con." Treating the subject like appointment as confidential.The argument of charged officer in defence also does not clear this fact that why many appointment letters had been issued with Issue Nos."Camp". As charged officer states - Files were maintained and office is responsible for safe "custody" of the same, then it is difficult to understand this fact that how the letters issued with No."Camp" had come in the files maintained by the office. If came, then how office can be responsible for this. "Camp" are also of different types. "Camp" order has been got issued from Gaya itself by sitting from Sadar Sub Divisional Office and for this purpose some clerk has also been given written order. Such papers do not have any concern with maintenance of file. Some "Camp" orders have also been issued from Nabada-Aurangabad and other places also. Which file could be submitted before him at those places on which letter had been issued from Nabada or Aurangabad itself and responsibility of the same was of the office of Regional Director, Gaya - it is also difficult to understand.As such, the explanation of charged officer is totally one sided. The matter is not confined to Issue No. only. When the charged officer in his defence claim of completing all the formalities, then all such actions such as assessing the vacancies, calling names from employment exchange or giving advertisement, making list of candidates, following selection process for the same, holding meeting of committee and preparing minutes and getting it approved are required to be taken. It is also difficult to accept that all such documents had gone missing at the same time. Merely by saying that safe custody of records was the responsibility of the office is neither complete in itself but credibility of this statement also suffers in view of nature of letters issued.Now question arises is that whether charged officer had removed the files/records of appointments made during his tenure or had taken away by him or somehow destroyed these records. All these three possibilities arise only when such records had been maintained. The type of appointment letters shown from which the fourth possibility also arises that no record has at all been maintained anywhere. As such, there is also no need to remove or take away any document. It is merely a possibility for which charged officer would have needed cooperation and participation of other persons to whom employees were being sent after appointment.It is not possible to finally decide from the evidences produced in this departmental inquiry that out of above three or fourth possibilities, which one is correct. One thing is though clear that charged officer had not left any of the papers related to appointment in his office and the manner in which he adopted the working system of appointments, this strong possibility arises that even if documents were maintained, these were not maintained at office level. In such a case, the charged officer shall himself be responsible for non-availability of documents, irrespective of following the method of removing those documents or not maintaining any documents. As such, this charge is held to be proved to thisadded]32. The so-called regularization of the services of the respondents on which heavy reliance was placed by the learned senior counsel appearing on their behalf in the context of averments contained in paragraph 4 of the counter affidavit filed before this Court by Shri Prasannjeet Kumar Singh (respondent no.3 herein) is a proof of nepotism practiced by the officer and deserves to be ignored. For the reasons best known to them, the respondents have not produced copy of the order by which their services were regularised. Perhaps none exists. The statement furnished by counsel for the appellant, which is accompanied by documents marked `A and `B, shows that in less than 7 months of the respondents appointment (except respondent no.1 who is said to have been appointed with effect from 9.10.1991), Dr. Darogi Razak is said to have written confidential memorandum bearing no.20 dated 11.5.1992 (Annexure `A) to District Animal Husbandry Officer, Aurongabad, Gaya that ad hoc appointments made vide Memorandum No.1467 dated 9.10.1991 are being regularized temporarily by the local appointments committee constituted on 11.5.1992. What is most amazing to notice is that the local appointments committee was constituted on 11.5.1992, the committee met on the same day and regularised the ad hoc appointments and on that very day the Regional Director sent confidential letter to his subordinate, i.e., the District Animal Husbandry Officer informing him about the regularization of ad hoc appointments. No rule or policy has been brought to our notice which empowers the appointing authority to regularize ad hoc appointments within a period of less than 7 months. Therefore, we have no hesitation to hold that the exercise undertaken by Dr. Darogi Razak for showing that appointments of the respondents were regularized by the local appointments committee on 11.5.1992 was a farce.33. In view of the above discussion, we hold that the initial appointments of the respondents were made in gross violation of the doctrine of equality enshrined in Articles 14 and 16 and the provisions of the 1959 Act and the learned Single Judge gravely erred by directing their reinstatement with consequential benefits.34. The issue which remains to be considered isthe Division Bench of the High Court was justified in refusing to examine legality and legitimacy of the initial appointments of the respondents only on the ground that the State had not challenged the dismissal of Letters Patent Appeals filed in othercases. In our view, the approach adopted by the Division Bench was clearly erroneous. By now it is settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior Court for repeating or multiplying the same irregularity or illegality or for passing wrong order – Chandigarh Administration and another v. Jagjit Singh and another [(1995) 1 SCC 745] , Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain and others [(1997) 1 SCC 35] , Union of India [Railway Board] and others v. J.V. Subhaiah and others [(1996) 2 SCC 258] , Gursharan Singh v. New Delhi Municipal Committee [(1996) 2 SCC 459] , State of Haryana v. Ram Kumar Mann [(1997) 1 SCC 35] , Faridabad CT Scan Centre v. D.G. Health Services and others [(1997) 7 SCC 752] , Style (Dress Land) v. Union Territory, Chandigarh and another [(1999) 7 SCC 89] and State of Bihar and others v. Kameshwar Prasad Singh and another [(2000) 9 SCC 94] , Union of India and another v. International Trading Co. and another [(2003) 5 SCC 437] and Directorate of Film Festivals and others v. Gaurav Ashwin Jain and others [(2007) 4 SCC 737] Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain (supra) this Courtillegal allotment founded upon ultra vires and illegal policy of allotment made to some other persons wrongly, would not form a legal premise to ensure it to the respondent or to repeat or perpetuate such illegal order, nor could it be legalized. In other words, judicial process cannot be abused to perpetuate the illegalities. Article 14 proceeds on the premise that a citizen has legal and valid right enforceable at law and persons having similar right and persons similarly circumstanced, cannot be denied of the benefit thereof. Such person cannot be discriminated to deny the same benefit. The rational relationship and legal back-up are the foundations to invoke the doctrine of equality in case of persons similarly situated. If some persons derived benefit by illegality and had escaped from the clutches of law, similar persons cannot plead, nor the Court can countenance that benefit had from infraction of law and must be allowed to be retained. One illegality cannot be compounded by permitting similar illegal or illegitimate or ultra viresUnion of India [Railway Board] and others v. J.V. Subhaiah and others (supra), a three-Judge Bench held asprinciple of equality enshrined under Article 14 of the Constitution, as contended for the respondents, does not apply since we have already held that the order of the CAT, Madras Bench is clearly unsustainable in law and illegal which can never form basis to hold that the other employees are invidiously discriminated offending Article 14. The employees covered by the order of the Madras Bench may be dealt with by the Railway Administration appropriately but that could not form foundation to plead discrimination violating Article 14 of theGursharan Singh v. New Delhi Municipal Committee (supra), this Court declined to invoke Article 14 of the Constitution for giving relief to the appellant andappears to be some confusion in respect of the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. This guarantee of equality before law is a positive concept and it cannot be enforced by a citizen or court in a negative manner. To put it in other words, if an illegality or irregularity has been committed in favour of any individual or a group of individuals, others cannot invoke the jurisdiction of the High Court or of this Court, that the same irregularity or illegality be committed by the State ... so far such petitioners are concerned, on the reasoning that they have been denied the benefits which have been extended to others although in an irregular or illegal manner. Such petitioners can question the validity of orders which are said to have been passed in favour of persons who were not entitled to the same, but they cannot claim orders which are not sanctioned by law in their favour on principle of equality before law. Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been aFaridabad CT. Scan Centre v. D.G. Health Services (supra), a three-Judge Bench overruled the earlier decision of a two Judge Bench in Mediwell Hospital & Health Care (P) Ltd. v. Union of India and others [(1997) 1 SCC 759] and14 cannot be invoked in cases where wrong orders are issued in favour of others. Wrong orders cannot be perpetuated with the help of Article 14 on the basis that such wrong orders were earlier passed in favour of some other persons and that, therefore, there will be discrimination against others if correct orders are passed against them. The benefit of the exemption notification, in the present case, cannot, therefore, be extended to the petitioner on the ground that such benefit has been wrongly extended toabove principles were extended to the judgment of the Court in State of Bihar v. Kameshwar Prasad Singh (supra) wherein this Court held asconcept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals, others cannot claim the same illegality or irregularity on the ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does not entitle others to claim similaradded]In State of Haryana v. Ram Kumar Mann (supra), this Court ruled that the High Court was not right in issuing a mandamus to the State to allow the petitioner to withdraw his resignation merely because in another case such a course as adopted.In Directorate of Film Festivals and others v. Gaurav Ashwin Jain and others (supra), a two-Judge Bench, after making a reference to the judgments in Jagjit Singhs case and Gursharan Singhs case,a grievance of discrimination is made, the High Court cannot just examine whether someone similarly situated has been granted a relief or benefit and then automatically direct grant of such relief or benefit to the person aggrieved. The High Court has to first examine whether the petitioner who has approached the court has established a right, entitling him to the relief sought on the facts and circumstances of the case. In the context of such examination, the fact that some others, who are similarly situated, have been granted relief which the petitioner is seeking, may be of some relevance. But where in law, a writ petitioner has not established a right or is not entitled to relief, the fact that a similarly situated person has been illegally granted relief, is not a ground to direct similar relief to him. That would be enforcing a negative equality by perpetuation of an illegality which is impermissible in
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### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination." In Faridabad CT. Scan Centre v. D.G. Health Services (supra), a three-Judge Bench overruled the earlier decision of a two Judge Bench in Mediwell Hospital & Health Care (P) Ltd. v. Union of India and others [(1997) 1 SCC 759] and held: "Article 14 cannot be invoked in cases where wrong orders are issued in favour of others. Wrong orders cannot be perpetuated with the help of Article 14 on the basis that such wrong orders were earlier passed in favour of some other persons and that, therefore, there will be discrimination against others if correct orders are passed against them. The benefit of the exemption notification, in the present case, cannot, therefore, be extended to the petitioner on the ground that such benefit has been wrongly extended to others." The above principles were extended to the judgment of the Court in State of Bihar v. Kameshwar Prasad Singh (supra) wherein this Court held as under: "The concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals, others cannot claim the same illegality or irregularity on the ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits." [emphasis added]In State of Haryana v. Ram Kumar Mann (supra), this Court ruled that the High Court was not right in issuing a mandamus to the State to allow the petitioner to withdraw his resignation merely because in another case such a course as adopted. Some of the observations made in that case, which are quite instructive, are extracted below: "The doctrine of discrimination is founded upon existence of an enforceable right. He was discriminated and denied equality as some similarly situated persons had been given the same relief. Article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstanced without any rational basis or relationship in that behalf. The respondent has no right, whatsoever and cannot be given the relief wrongly given to them, i.e., benefit of withdrawal of resignation. The High Court was wholly wrong in reaching the conclusion that there was invidious discrimination. If we cannot allow a wrong to perpetrate, an employee, after committing misappropriation of money, is dismissed from service and subsequently that order is withdrawn and he is reinstated into the service. Can a similarly circumstanced person claim equality under Section 14 for reinstatement? The answer is obviously `No. In a converse case, in the first instance, one may be wrong but the wrong order cannot be the foundation for claiming equality for enforcement of the same order. As stated earlier, his right must be founded upon enforceable right to entitle him to the equality treatment for enforcement thereof. A wrong decision by the Government does not give a right to enforce the wrong order and claim parity or equality. Two wrongs can never make a right." In Union of India v. International Trading Co. (supra), the Court reiterated that Article 14 does not comprehend negative equality and observed: "What remains now to be considered, is the effect of permission granted to the thirty two vessels. As highlighted by learned counsel for the appellants, even if it is accepted that there was any improper permission, that may render such permissions vulnerable so far as the thirty two vessels are concerned, but it cannot come to the aid of the respondents. It is not necessary todeal with that aspect because two wrongs do not make one right. A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution of India (in short "the Constitution") cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the respondents cannot strengthen their case. They have to establish strength of their case on some other basis and not by claiming negative equality." In Directorate of Film Festivals and others v. Gaurav Ashwin Jain and others (supra), a two-Judge Bench, after making a reference to the judgments in Jagjit Singhs case and Gursharan Singhs case, observed: "When a grievance of discrimination is made, the High Court cannot just examine whether someone similarly situated has been granted a relief or benefit and then automatically direct grant of such relief or benefit to the person aggrieved. The High Court has to first examine whether the petitioner who has approached the court has established a right, entitling him to the relief sought on the facts and circumstances of the case. In the context of such examination, the fact that some others, who are similarly situated, have been granted relief which the petitioner is seeking, may be of some relevance. But where in law, a writ petitioner has not established a right or is not entitled to relief, the fact that a similarly situated person has been illegally granted relief, is not a ground to direct similar relief to him. That would be enforcing a negative equality by perpetuation of an illegality which is impermissible in law."
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0
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would not form a legal premise to ensure it to the respondent or to repeat or perpetuate such illegal order, nor could it be legalized. In other words, judicial process cannot be abused to perpetuate the illegalities. Article 14 proceeds on the premise that a citizen has legal and valid right enforceable at law and persons having similar right and persons similarly circumstanced, cannot be denied of the benefit thereof. Such person cannot be discriminated to deny the same benefit. The rational relationship and legal back-up are the foundations to invoke the doctrine of equality in case of persons similarly situated. If some persons derived benefit by illegality and had escaped from the clutches of law, similar persons cannot plead, nor the Court can countenance that benefit had from infraction of law and must be allowed to be retained. One illegality cannot be compounded by permitting similar illegal or illegitimate or ultra viresUnion of India [Railway Board] and others v. J.V. Subhaiah and others (supra), a three-Judge Bench held asprinciple of equality enshrined under Article 14 of the Constitution, as contended for the respondents, does not apply since we have already held that the order of the CAT, Madras Bench is clearly unsustainable in law and illegal which can never form basis to hold that the other employees are invidiously discriminated offending Article 14. The employees covered by the order of the Madras Bench may be dealt with by the Railway Administration appropriately but that could not form foundation to plead discrimination violating Article 14 of theGursharan Singh v. New Delhi Municipal Committee (supra), this Court declined to invoke Article 14 of the Constitution for giving relief to the appellant andappears to be some confusion in respect of the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. This guarantee of equality before law is a positive concept and it cannot be enforced by a citizen or court in a negative manner. To put it in other words, if an illegality or irregularity has been committed in favour of any individual or a group of individuals, others cannot invoke the jurisdiction of the High Court or of this Court, that the same irregularity or illegality be committed by the State ... so far such petitioners are concerned, on the reasoning that they have been denied the benefits which have been extended to others although in an irregular or illegal manner. Such petitioners can question the validity of orders which are said to have been passed in favour of persons who were not entitled to the same, but they cannot claim orders which are not sanctioned by law in their favour on principle of equality before law. Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been aFaridabad CT. Scan Centre v. D.G. Health Services (supra), a three-Judge Bench overruled the earlier decision of a two Judge Bench in Mediwell Hospital & Health Care (P) Ltd. v. Union of India and others [(1997) 1 SCC 759] and14 cannot be invoked in cases where wrong orders are issued in favour of others. Wrong orders cannot be perpetuated with the help of Article 14 on the basis that such wrong orders were earlier passed in favour of some other persons and that, therefore, there will be discrimination against others if correct orders are passed against them. The benefit of the exemption notification, in the present case, cannot, therefore, be extended to the petitioner on the ground that such benefit has been wrongly extended toabove principles were extended to the judgment of the Court in State of Bihar v. Kameshwar Prasad Singh (supra) wherein this Court held asconcept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals, others cannot claim the same illegality or irregularity on the ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does not entitle others to claim similaradded]In State of Haryana v. Ram Kumar Mann (supra), this Court ruled that the High Court was not right in issuing a mandamus to the State to allow the petitioner to withdraw his resignation merely because in another case such a course as adopted.In Directorate of Film Festivals and others v. Gaurav Ashwin Jain and others (supra), a two-Judge Bench, after making a reference to the judgments in Jagjit Singhs case and Gursharan Singhs case,a grievance of discrimination is made, the High Court cannot just examine whether someone similarly situated has been granted a relief or benefit and then automatically direct grant of such relief or benefit to the person aggrieved. The High Court has to first examine whether the petitioner who has approached the court has established a right, entitling him to the relief sought on the facts and circumstances of the case. In the context of such examination, the fact that some others, who are similarly situated, have been granted relief which the petitioner is seeking, may be of some relevance. But where in law, a writ petitioner has not established a right or is not entitled to relief, the fact that a similarly situated person has been illegally granted relief, is not a ground to direct similar relief to him. That would be enforcing a negative equality by perpetuation of an illegality which is impermissible in
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Col. D.I.Mac Pherson Vs. M.N. Appanna And Another
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prepared as soon as possible."6. In the meantime, defendant 1 sent a cable to White to the following effect:"Accept rupees eleven thousand Morvern Lodge occupation permitted, when full amount deposited my account Mircantile Bank Madras inform Youngman."7. Thereafter, defendant 1 paid the amount of Rs, 11,000 and occupied the bungalow.8. The question to be decided in this Case is whether in view of the correspondence which has been reproduced, it could be held that there was a concluded contract for the sale of "Morvern Lodge" in favour of the plaintiff on the14th August, as stated by him in the plaint. The Judicial Commissioner of Coorg who tried the suit held that there was a concluded contract, but, instead of giving to the plaintiff a decree for specific performance, awarded a sum of Rs. 3,000 as compensation to him. Against this decree, defendant 1 alone has appealed, after obtaining a certificate under S. 109 (c), Civil P. C. from the Judicial Commissioner. The plaintiff has not preferred any appeal.9. The plaintiffs case is that the cable sent by defendant 1 on the 5th August, and received by Youngman on the 8th, to the effect that he would not accept less than Rs. 10,000, was a counter-offer made by him through Youngman to the plaintiff, and the contract was complete as soon as he accepted it. We however find it difficult to hold on the entire facts of the case that there was any concluded contract on 14-8-1944, and we are supported in this view by the well-known case of Harvey v. Facy,(1893) A. C. 552 : (62 L. J. P. C. 127), in which the facts were somewhat similar to those of the present case.In that case, the appellants had telegraphed to the respondents "Wil1 you sell us B. H.P.? Telegraph lowest cash price, and the respondents had telegraphed in reply. "Lowest price for B. H. P. ?900," and then the appellants telegraphed. "we agree to buy B. H. P. for ?900 asked by you. Please send us your title deed in order that we may get early possession,. but received no reply. On these facts, the Privy Council held that there was no contract, and Lord Norris, who delivered the judgment of the Board, observed as follows :"The third telegram from the appellants treats the answer of L. M. Facey stating his lowest price as an unconditional offer to sell to them at the price named. Their Lordships cannot treat the telegram from L.M. Facey as binding him in any respect, except to the extent it does by its terms, viz., the lowest price. Everything else is left open, and the reply telegram from the appellants cannot be treated as an acceptance of an offer to sell them ; it is an offer that required to be accepted by L. M. Facey. The contract could only be completed if L.M. Facey had accepted the appellants last telegram. It has been contended for the appellants that L. M. Faceys telegram should be read as saying yes to the first question put in the appellants telegram, but there is nothing to support, that contention. L. M. Faceys telegram gives a precise answer to a precise question, viz., the price. The contract must appear by the telegrams, whereas the appellants are obliged to contend that an acceptance of the first question is to be implied. Their Lordships are of opinion that the mere statement of the lowest price at which the vendor would sell contains no implied contract to sell at that price to the persons making the inquiry."10. The conclusion at which we have arrived is strengthened by certain facts which emerge from the correspondence between the parties.The real question is whether defendant 1 had made a counter offer in his cable of 5th August or he was merely inviting offers. The plaintiff in his letter of 14th August addressed to Youngman, stated that he confirmed his oral offer of ten thousand for the bungalow, and he did not say in so many words that he accepted the counter. offer of defendant1. Similarly, in the cable which Youngman sent to : defendant 1 on 28th August, he did not state that the latters offer had been accepted, but stated that he had been offered Rs. 10,000 for the bungalow and concluded with the words "May I sell?" Neither party thus treated defendant 1s cable as containing a counter-offer. On the other hand, they proceeded on the footing that the plaintiff had made an offer of Rs. 10,000 which was subject to acceptance by defendant1. Apparently, defendant 1 was in communication not only with Yonngman but also White, and both of them rightly thought that no transaction could be concluded without obtaining defendant 1s express assent to it.11. Mr. Jindra Lal, counsel for the plaintiff, who pressed his points with force and ability, contended that by 26-8-1944, Youngman had come under the influence of the rival bidder or at least that of White who was supporting him, and the cable to defendant 1 was deliberately framed by Youngman in such a way as to prejudice the plaintiff. There is however nothing in the evidence to support such an extreme conclusion. On the other hand, Youngman has frankly stated in his evidence that he felt it improper to entertain Subbayyas higher offer and did not communicate it to defendant1. This statement is supported by the cable of 26th August, and, if Youngman can be said to have had any leaning at all, it was certainly in favour of the plaintiff. In these circumstances, it would be difficult to hold that Youngman had deliberately misdescribed the plaintiffs acceptance of the counter-offer as his offer in the cable which he sent on 26th August to defendant 1.12. It seems to us that the view taken by the Judicial Commissioner is not correct, and, as there was no concluded contract, the decree passed by him awarding compensation to the plaintiff for breach of contract cannot be sustained.
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1[ds]The conclusion at which we have arrived is strengthened by certain facts which emerge from the correspondence between the parties.The real question is whether defendant 1 had made a counter offer in his cable of 5th August or he was merely inviting offers. The plaintiff in his letter of 14th August addressed to Youngman, stated that he confirmed his oral offer of ten thousand for the bungalow, and he did not say in so many words that he accepted the counter. offer ofSimilarly, in the cable which Youngman sent to : defendant 1 on 28th August, he did not state that the latters offer had been accepted, but stated that he had been offered Rs. 10,000 for the bungalow and concluded with the words "May I sell?" Neither party thus treated defendant 1s cable as containing a counter-offer. On the other hand, they proceeded on the footing that the plaintiff had made an offer of Rs. 10,000 which was subject to acceptance byApparently, defendant 1 was in communication not only with Yonngman but also White, and both of them rightly thought that no transaction could be concluded without obtaining defendant 1s express assent tothese circumstances, it would be difficult to hold that Youngman had deliberately misdescribed the plaintiffs acceptance of the counter-offer as his offer in the cable which he sent on 26th August to defendant 1.It seems to us that the view taken by the Judicial Commissioner is not correct, and, as there was no concluded contract, the decree passed by him awarding compensation to the plaintiff for breach of contract cannot be sustained
| 1 | 2,070 | 290 |
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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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prepared as soon as possible."6. In the meantime, defendant 1 sent a cable to White to the following effect:"Accept rupees eleven thousand Morvern Lodge occupation permitted, when full amount deposited my account Mircantile Bank Madras inform Youngman."7. Thereafter, defendant 1 paid the amount of Rs, 11,000 and occupied the bungalow.8. The question to be decided in this Case is whether in view of the correspondence which has been reproduced, it could be held that there was a concluded contract for the sale of "Morvern Lodge" in favour of the plaintiff on the14th August, as stated by him in the plaint. The Judicial Commissioner of Coorg who tried the suit held that there was a concluded contract, but, instead of giving to the plaintiff a decree for specific performance, awarded a sum of Rs. 3,000 as compensation to him. Against this decree, defendant 1 alone has appealed, after obtaining a certificate under S. 109 (c), Civil P. C. from the Judicial Commissioner. The plaintiff has not preferred any appeal.9. The plaintiffs case is that the cable sent by defendant 1 on the 5th August, and received by Youngman on the 8th, to the effect that he would not accept less than Rs. 10,000, was a counter-offer made by him through Youngman to the plaintiff, and the contract was complete as soon as he accepted it. We however find it difficult to hold on the entire facts of the case that there was any concluded contract on 14-8-1944, and we are supported in this view by the well-known case of Harvey v. Facy,(1893) A. C. 552 : (62 L. J. P. C. 127), in which the facts were somewhat similar to those of the present case.In that case, the appellants had telegraphed to the respondents "Wil1 you sell us B. H.P.? Telegraph lowest cash price, and the respondents had telegraphed in reply. "Lowest price for B. H. P. ?900," and then the appellants telegraphed. "we agree to buy B. H. P. for ?900 asked by you. Please send us your title deed in order that we may get early possession,. but received no reply. On these facts, the Privy Council held that there was no contract, and Lord Norris, who delivered the judgment of the Board, observed as follows :"The third telegram from the appellants treats the answer of L. M. Facey stating his lowest price as an unconditional offer to sell to them at the price named. Their Lordships cannot treat the telegram from L.M. Facey as binding him in any respect, except to the extent it does by its terms, viz., the lowest price. Everything else is left open, and the reply telegram from the appellants cannot be treated as an acceptance of an offer to sell them ; it is an offer that required to be accepted by L. M. Facey. The contract could only be completed if L.M. Facey had accepted the appellants last telegram. It has been contended for the appellants that L. M. Faceys telegram should be read as saying yes to the first question put in the appellants telegram, but there is nothing to support, that contention. L. M. Faceys telegram gives a precise answer to a precise question, viz., the price. The contract must appear by the telegrams, whereas the appellants are obliged to contend that an acceptance of the first question is to be implied. Their Lordships are of opinion that the mere statement of the lowest price at which the vendor would sell contains no implied contract to sell at that price to the persons making the inquiry."10. The conclusion at which we have arrived is strengthened by certain facts which emerge from the correspondence between the parties.The real question is whether defendant 1 had made a counter offer in his cable of 5th August or he was merely inviting offers. The plaintiff in his letter of 14th August addressed to Youngman, stated that he confirmed his oral offer of ten thousand for the bungalow, and he did not say in so many words that he accepted the counter. offer of defendant1. Similarly, in the cable which Youngman sent to : defendant 1 on 28th August, he did not state that the latters offer had been accepted, but stated that he had been offered Rs. 10,000 for the bungalow and concluded with the words "May I sell?" Neither party thus treated defendant 1s cable as containing a counter-offer. On the other hand, they proceeded on the footing that the plaintiff had made an offer of Rs. 10,000 which was subject to acceptance by defendant1. Apparently, defendant 1 was in communication not only with Yonngman but also White, and both of them rightly thought that no transaction could be concluded without obtaining defendant 1s express assent to it.11. Mr. Jindra Lal, counsel for the plaintiff, who pressed his points with force and ability, contended that by 26-8-1944, Youngman had come under the influence of the rival bidder or at least that of White who was supporting him, and the cable to defendant 1 was deliberately framed by Youngman in such a way as to prejudice the plaintiff. There is however nothing in the evidence to support such an extreme conclusion. On the other hand, Youngman has frankly stated in his evidence that he felt it improper to entertain Subbayyas higher offer and did not communicate it to defendant1. This statement is supported by the cable of 26th August, and, if Youngman can be said to have had any leaning at all, it was certainly in favour of the plaintiff. In these circumstances, it would be difficult to hold that Youngman had deliberately misdescribed the plaintiffs acceptance of the counter-offer as his offer in the cable which he sent on 26th August to defendant 1.12. It seems to us that the view taken by the Judicial Commissioner is not correct, and, as there was no concluded contract, the decree passed by him awarding compensation to the plaintiff for breach of contract cannot be sustained.
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The conclusion at which we have arrived is strengthened by certain facts which emerge from the correspondence between the parties.The real question is whether defendant 1 had made a counter offer in his cable of 5th August or he was merely inviting offers. The plaintiff in his letter of 14th August addressed to Youngman, stated that he confirmed his oral offer of ten thousand for the bungalow, and he did not say in so many words that he accepted the counter. offer ofSimilarly, in the cable which Youngman sent to : defendant 1 on 28th August, he did not state that the latters offer had been accepted, but stated that he had been offered Rs. 10,000 for the bungalow and concluded with the words "May I sell?" Neither party thus treated defendant 1s cable as containing a counter-offer. On the other hand, they proceeded on the footing that the plaintiff had made an offer of Rs. 10,000 which was subject to acceptance byApparently, defendant 1 was in communication not only with Yonngman but also White, and both of them rightly thought that no transaction could be concluded without obtaining defendant 1s express assent tothese circumstances, it would be difficult to hold that Youngman had deliberately misdescribed the plaintiffs acceptance of the counter-offer as his offer in the cable which he sent on 26th August to defendant 1.It seems to us that the view taken by the Judicial Commissioner is not correct, and, as there was no concluded contract, the decree passed by him awarding compensation to the plaintiff for breach of contract cannot be sustained
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Ramashray Singh Vs. New India Assurance Co. Ltd.
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course enter into a contract by which the insurer agrees to cover additional risks. It is not the appellants case that apart from the policy of insurance there was any contract between the appellant and the insurance company. The policy has a clause which defines the limits of liability in respect of death or bodily injury to any person caused by or arising out of the use of the mother vehicle under Section II(i) of the terms and conditions of the Policy. In proviso (b) to Section II(1), it has been expressly stated that Except so far as is necessary to meet the requirements of the Motor Vehicles Act, the Company shall not be liable in respect of death of or bodily injury to any person in the employment of the insured arising out of end in the course of such employment. 9. A copy of the original policy was produced by respondents in the course of arguments. The appellant has objected to the production of the policy at this stage. We would have understood and upheld the submission had the appellant not based his claim on the policy. Indeed, in the absence of the policy, we could not have entertained the appellants claim at all. (See: Dr. T.V. Jose V. Chacko P.M. alias Thankachan 2001 (B) SCC 748). 10. The appellants first submission was that Shashi Bhushan Singh was a passenger. The appellants submission that the phrases any person and any passenger in clauses (i) and (ii) of sub section (b) to Section 147(1) are of wide amplitude, is correct. (See : New India Assurance Company vs. Satpal Singh and others (2000 (1) SCC 237) . However , the proviso to the sub-section carves out an exception in respect of one class of persons and passengers, namely, employees of the insured, in other words, if the person or passenger is an employee, then the insurer is required under the statute to cover only certain employees. As stated earlier, this would still allow the insured to enter into an agreement to cover other employees, but under the proviso to Section 147 (1)(b), it is clear that for the purposes of Section 146(1), a policy shall not be required to cover liability in respect of the death arising out of and in the course of any employment of the person insured unless. first: the liability of the insured arises under the Workmens Compensation Act, 1923 and second : if the employee is engaged in driving the vehicle and if it is a public service vehicle, is engaged as conductor of the vehicle or in examining tickets on the vehicle. If the concerned employee is neither a driver nor conductor nor examiner of tickets, the insured cannot claim that the employee would come under the description of any person or passenger. If this were permissible, then there would be no need to make special provisions for employees of the insured. The mere mention of the word cleaner while describing the seating capacity of the vehicle does not mean that the cleaner was therefore a passenger. Besides the claim of the deceased employee was adjudicated upon by the Workmens Compensation Court which could have assumed jurisdiction and passed an order directing compensation only on the basis that the deceased was an employee. This order cannot now be enforced on the basis that the deceased was a passenger. 11. The decision of the Full Bench of the Kerala High Court relied on by the appellant National Insurance Co. Ltd. vs. Philomena Mathew : 1993 ACJ 1116 was based on a construction of Section 95 of the Motor Vehicle Act, 1939 the corresponding section to which under the present Act is section 147. The relevant provisions of the two sections which are otherwise in pari materia are materially different in one respect. Section 95 covered a fourth category of employee after the three now mentioned in clauses (a)(b) and (c) to the proviso to Section 147(1)(b) viz; Where the the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event, out of which a claim arises. (emphasis supplied) 12. So a person carried in pursuance of a contract of employment would be a passenger and would be covered as such. The exclusion of this clause in the proviso to Section 147(1)(b) of the present Act bolsters our reasoning that employees other than the three mentioned are not covered by Section 147(1)(b). 13. The appellants next submission was that the concerned employee was a conductor. It is doubtful whether a khalasi and a conductor are the same. But assuming this were so, there is nothing to show that the appellant had paid any additional premium to cover the risk of injury to a conductor. On the contrary, the policy shows that premium was paid for 13 passengers and 1 driver. There is no payment of premium for a conductor. 14. The appellants final submission was that as the poli8cy was a comprehensive one, it would cover all risks including the death of the khalasi. The submission in unacceptable. An insurance policy only covers the person or classes of persons specified it the policy. A comprehensive policy merely means that the loss sustained by such person/persons will be payable upto the insured amount irrespective of the actual loss suffered. [See: New India Insurance Co. Ltd. vs. J.M. Jaya 2002 (2) SCC 278 ; Collnvauxs: Law of Insurance (7th Edition) p. 93-94]. 15. Consequently, although the appellants claim under the insurance policy arose under the Workmens Compensation Act, since the concerned employee was not engaged in the capacity of driver in respect of whom alone premium was paid apart fro the passengers, his claim is unsustainable.
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0[ds]The appellants submission that the phrases any person and any passenger in clauses (i) and (ii) of sub section (b) to Section 147(1) are of wide amplitude, is correct.However , the proviso to the sub-section carves out an exception in respect of one class of persons and passengers, namely, employees of the insured, in other words, if the person or passenger is an employee, then the insurer is required under the statute to cover only certain employees. As stated earlier, this would still allow the insured to enter into an agreement to cover other employees, but under the proviso to Section 147 (1)(b), it is clear that for the purposes of Section 146(1), a policy shall not be required to cover liability in respect of the death arising out of and in the course of any employment of the person insured unless. first: the liability of the insured arises under the Workmens Compensation Act, 1923 and second : if the employee is engaged in driving the vehicle and if it is a public service vehicle, is engaged as conductor of the vehicle or in examining tickets on the vehicle. If the concerned employee is neither a driver nor conductor nor examiner of tickets, the insured cannot claim that the employee would come under the description of any person or passenger. If this were permissible, then there would be no need to make special provisions for employees of the insured. The mere mention of the word cleaner while describing the seating capacity of the vehicle does not mean that the cleaner was therefore a passenger. Besides the claim of the deceased employee was adjudicated upon by the Workmens Compensation Court which could have assumed jurisdiction and passed an order directing compensation only on the basis that the deceased was an employee. This order cannot now be enforced on the basis that the deceased was a passengerIt is doubtful whether a khalasi and a conductor are the same. But assuming this were so, there is nothing to show that the appellant had paid any additional premium to cover the risk of injury to a conductor. On the contrary, the policy shows that premium was paid for 13 passengers and 1 driver. There is no payment of premium for a conductorAn insurance policy only covers the person or classes of persons specified it the policy. A comprehensive policy merely means that the loss sustained by such person/persons will be payable upto the insured amount irrespective of the actual loss suffered15. Consequently, although the appellants claim under the insurance policy arose under the Workmens Compensation Act, since the concerned employee was not engaged in the capacity of driver in respect of whom alone premium was paid apart fro the passengers, his claim is unsustainable
| 0 | 2,019 | 515 |
### 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:
course enter into a contract by which the insurer agrees to cover additional risks. It is not the appellants case that apart from the policy of insurance there was any contract between the appellant and the insurance company. The policy has a clause which defines the limits of liability in respect of death or bodily injury to any person caused by or arising out of the use of the mother vehicle under Section II(i) of the terms and conditions of the Policy. In proviso (b) to Section II(1), it has been expressly stated that Except so far as is necessary to meet the requirements of the Motor Vehicles Act, the Company shall not be liable in respect of death of or bodily injury to any person in the employment of the insured arising out of end in the course of such employment. 9. A copy of the original policy was produced by respondents in the course of arguments. The appellant has objected to the production of the policy at this stage. We would have understood and upheld the submission had the appellant not based his claim on the policy. Indeed, in the absence of the policy, we could not have entertained the appellants claim at all. (See: Dr. T.V. Jose V. Chacko P.M. alias Thankachan 2001 (B) SCC 748). 10. The appellants first submission was that Shashi Bhushan Singh was a passenger. The appellants submission that the phrases any person and any passenger in clauses (i) and (ii) of sub section (b) to Section 147(1) are of wide amplitude, is correct. (See : New India Assurance Company vs. Satpal Singh and others (2000 (1) SCC 237) . However , the proviso to the sub-section carves out an exception in respect of one class of persons and passengers, namely, employees of the insured, in other words, if the person or passenger is an employee, then the insurer is required under the statute to cover only certain employees. As stated earlier, this would still allow the insured to enter into an agreement to cover other employees, but under the proviso to Section 147 (1)(b), it is clear that for the purposes of Section 146(1), a policy shall not be required to cover liability in respect of the death arising out of and in the course of any employment of the person insured unless. first: the liability of the insured arises under the Workmens Compensation Act, 1923 and second : if the employee is engaged in driving the vehicle and if it is a public service vehicle, is engaged as conductor of the vehicle or in examining tickets on the vehicle. If the concerned employee is neither a driver nor conductor nor examiner of tickets, the insured cannot claim that the employee would come under the description of any person or passenger. If this were permissible, then there would be no need to make special provisions for employees of the insured. The mere mention of the word cleaner while describing the seating capacity of the vehicle does not mean that the cleaner was therefore a passenger. Besides the claim of the deceased employee was adjudicated upon by the Workmens Compensation Court which could have assumed jurisdiction and passed an order directing compensation only on the basis that the deceased was an employee. This order cannot now be enforced on the basis that the deceased was a passenger. 11. The decision of the Full Bench of the Kerala High Court relied on by the appellant National Insurance Co. Ltd. vs. Philomena Mathew : 1993 ACJ 1116 was based on a construction of Section 95 of the Motor Vehicle Act, 1939 the corresponding section to which under the present Act is section 147. The relevant provisions of the two sections which are otherwise in pari materia are materially different in one respect. Section 95 covered a fourth category of employee after the three now mentioned in clauses (a)(b) and (c) to the proviso to Section 147(1)(b) viz; Where the the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event, out of which a claim arises. (emphasis supplied) 12. So a person carried in pursuance of a contract of employment would be a passenger and would be covered as such. The exclusion of this clause in the proviso to Section 147(1)(b) of the present Act bolsters our reasoning that employees other than the three mentioned are not covered by Section 147(1)(b). 13. The appellants next submission was that the concerned employee was a conductor. It is doubtful whether a khalasi and a conductor are the same. But assuming this were so, there is nothing to show that the appellant had paid any additional premium to cover the risk of injury to a conductor. On the contrary, the policy shows that premium was paid for 13 passengers and 1 driver. There is no payment of premium for a conductor. 14. The appellants final submission was that as the poli8cy was a comprehensive one, it would cover all risks including the death of the khalasi. The submission in unacceptable. An insurance policy only covers the person or classes of persons specified it the policy. A comprehensive policy merely means that the loss sustained by such person/persons will be payable upto the insured amount irrespective of the actual loss suffered. [See: New India Insurance Co. Ltd. vs. J.M. Jaya 2002 (2) SCC 278 ; Collnvauxs: Law of Insurance (7th Edition) p. 93-94]. 15. Consequently, although the appellants claim under the insurance policy arose under the Workmens Compensation Act, since the concerned employee was not engaged in the capacity of driver in respect of whom alone premium was paid apart fro the passengers, his claim is unsustainable.
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### Explanation:
The appellants submission that the phrases any person and any passenger in clauses (i) and (ii) of sub section (b) to Section 147(1) are of wide amplitude, is correct.However , the proviso to the sub-section carves out an exception in respect of one class of persons and passengers, namely, employees of the insured, in other words, if the person or passenger is an employee, then the insurer is required under the statute to cover only certain employees. As stated earlier, this would still allow the insured to enter into an agreement to cover other employees, but under the proviso to Section 147 (1)(b), it is clear that for the purposes of Section 146(1), a policy shall not be required to cover liability in respect of the death arising out of and in the course of any employment of the person insured unless. first: the liability of the insured arises under the Workmens Compensation Act, 1923 and second : if the employee is engaged in driving the vehicle and if it is a public service vehicle, is engaged as conductor of the vehicle or in examining tickets on the vehicle. If the concerned employee is neither a driver nor conductor nor examiner of tickets, the insured cannot claim that the employee would come under the description of any person or passenger. If this were permissible, then there would be no need to make special provisions for employees of the insured. The mere mention of the word cleaner while describing the seating capacity of the vehicle does not mean that the cleaner was therefore a passenger. Besides the claim of the deceased employee was adjudicated upon by the Workmens Compensation Court which could have assumed jurisdiction and passed an order directing compensation only on the basis that the deceased was an employee. This order cannot now be enforced on the basis that the deceased was a passengerIt is doubtful whether a khalasi and a conductor are the same. But assuming this were so, there is nothing to show that the appellant had paid any additional premium to cover the risk of injury to a conductor. On the contrary, the policy shows that premium was paid for 13 passengers and 1 driver. There is no payment of premium for a conductorAn insurance policy only covers the person or classes of persons specified it the policy. A comprehensive policy merely means that the loss sustained by such person/persons will be payable upto the insured amount irrespective of the actual loss suffered15. Consequently, although the appellants claim under the insurance policy arose under the Workmens Compensation Act, since the concerned employee was not engaged in the capacity of driver in respect of whom alone premium was paid apart fro the passengers, his claim is unsustainable
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Maharashtra State Electricity Board Vs. Kalyan Borough Municipality & Another
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power, cannot be accepted.34. The next ground of attack against S. 49 is that it gives an unguided and arbitrary power to the Board to fix the tariff as it likes, and not maximum limit for the tariffs that may be fixed by the Board, has been stated. On first blush, it may appear that this contention has considerable force; but we are satisfied that no such unguided or arbitrary power has been conferred on the Board either in the matter of framing uniform tariffs or in the matter of fixing different tariffs for the supply of electricity to any person, not being a licensee. No doubt, the maximum as such, has not been fixed in the statute. But, in our opinion, there are sufficient restrictions placed upon the power of the Board. In this connection, reference may be made to some of the sections of the Supply Act. Section 16, as we have already indicated, provides for the State Government constituting a State Electricity Consultative Council for the State. That Council consists of the representatives of the various interests including representatives of consumers of electricity. The Board is bound to place before the State Electricity Consultative Council under sub-s. (6) the annual financial statement and supplementary statement and a duty is cast upon the Board to take into consideration any comments made on such statement. This annual financial statement will have then to be submitted to the State Government under S. 01. Under that section, in February of each year, the Board has to submit to the State Government an annual financial statement in the prescribed form, of the estimated capital and revenue receipts and expenditure for the ensuing year. That statement, under sub-s. (3) has to be placed before the State Legislature and it is open to discussion. Again, sub-s. (4) of S. 61 casts a duty on the Board to take into consideration any comments made on the said statement in the State Legislature. Section 75 again provides for the Board submitting to the State Government a report giving an account of its activities during the previous financial year as also an account of its activities which are likely to be undertaken by it in the next financial year. The State Government is to place the said report before the State Legislature.35. We have already indicated, by reference to R. 57, Cl. (q) of the rules framed by the State of Maharashtra that details of tariff will have to be furnished by the Board in its annual report. Under Cl. (j) of S. 79, the Board has also to make regulations laying down the principles governing the supply of electricity by it to persons other than licensees under S. 49.In our opinion, al] these provisions have the effect of properly guiding the activities of the Board, in its clearings with the consumers including the levy of tariffs. Section 49 itself is hedged in by various restrictions and directions which the Board will have to comply in the matter of framing uniform tariffs or in the matter of fixing different tariffs, and that section, also in our opinion, provides a proper guide-line for framing uniform tariffs and different tariffs. Therefore, in particular, it may be noted that the extension and cheapening of supplies of electricity to sparsely developed areas under Clause (d) of Section 49 (2) of the Act can only be complied with by keeping the uniform rates at a minimum, consistently with the requirement, under Section 59, of not running at a loss. Therefore, we are satisfied, that Section 49 is not, in any way, bad on the ground that it gives an unguided and arbitrary power to the Board to fix its tariffs as it likes.36. The next ground of attack is that consumers who are supplied electricity by the licensees are differently treated from similar consumers under the Board. In this connection, reference is made to Section 57 of the Supply Act which provides for the 6th and 7th schedule to be deemed to be incorporated in the licence of every licensee. Clause I of the sixth schedule provides that the licensee shall so adjust his charges for the sale of electricity, whether by enhancing or reducing them that his clear profit in any year of account shall not, as far as possible, exceed the amount of reasonable return. It is argued that while restrictions have been placed on the licensees, no such restrictions have been placed on the Board.The distinction sought to be pointed out, in our opinion, has no substance. The licensees are persons who must have invested considerable capital in the matter of their business, and obviously, the Legislature thought that some directions will have to be given so as to enable them to have a reasonable return. But we have already indicated that sufficient guidance has been laid down in the matter of fixing of tariffs by the Board. Therefore this ground of attack also cannot be sustained.37. Therefore, both the grounds of attack, levelled by the respondents, will have to be rejected.38. On behalf of the respondents, a feeble attempt was made to show that Section 24 of the Amendment Act has not valid dated the levy and collection in these cases. According to the respondents, in this case, there is nothing to show that the provisions of Section 49, as amended, which is deemed to have been in force at all material times, have been complied with by the Board before the levy was made, and therefore, the levy in this case cannot be sustained. We are not inclined to accept this contention of the respondents. Section 24 of the Amendment Act, in our opinion, deals with all rates, as a matter of fact fixed under Section 49 of the Act. In this case, the Board has fixed tariffs under Section 49 of the Act. Therefore, Section 24 of the Amendment Act has full effect and force.39. The result is that all the contentions of the respondents fail.
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1[ds]We have already referred to the material provisions of the Act which will show the nature of the duties cast upon the Board. Section 59 lays down that the Board after taking subventions from the State Government shall not as far as practicable carry on its operations under the Act at a loss and that the Board is to adjust its charges accordingly from time to time. That means that cost has to be taken into account, though that is not the sole or only criterion for fixing the tariff. There is also no indication in the Act that uniform tariffs can be fixed only in respect of particular regions or areas. We are not impressed with the contention of the respondents that by uniform tariffs being levied by the Board it is making more profits in compact areas than in sparse areas nor with the further contention that development of sparse areas is being done at the expense of compact areas.The question of the Board showing undue preference to any person in fixing the tariffs and terms and conditions for supply of electricity will not arise when the Board frames uniform tariffs under sub-ss. (I) and (2). When the entire tariff is uniform for every consumer, there is no question of any undue preference as every customer will pay the same amount for the same benefit received by him. Sub-s. (3) of S. 49 recognises the power of the Board to fix different tariffs for the supply of electricity and it is really here, if at all, that an occasion for any undue preference being shown, may arise. Therefore, in our opinion, sub-s. (4) will control the action of the Board under sub-s. (3) of S. 49. We are not inclined to accept the contention of the respondents that the consumers in compact area cannot be treated as on par with the consumers in sparse area and that uniform tariffs cannot be levied on both. In this case, we have already referred to the fact that both the respondents are consumers of low tension electricity and that uniform tariffs have been levied for the entire State of Maharashtra excepting certain types of consumers in Poona area.To conclude we are of the opinion, that the Board had ample powers to frame uniform tariffs as it has done in the case before us and the levy ishave already rejected the contention of the respondents in this regard and we have held that the cost of supply is only one of the factors to be taken into account in fixing the tariff. If that is so, it follows, that in this case, there is no question of any levy of tax by Parliament through the medium of the Board. By reference to the proviso to sub-cl. (b) of Cl (10) of S. 67, it is further urged by the respondents that the Board may fix tariffs in such a way that large surplus may be found by them from which one-half will be credited to the consolidated fund of the State. This action, according to the respondents, amounts to levy of tax for which there is no power in law. We are not inclined to accept this contention either. Section 67 of the Supply Act which occurs in Chapter VI relating to the Boards finance, accounts and audit, deals with priority of inabilities of the Board. After meeting its operations, maintenance and management expenses and providing for the payment of tax on its income and profits, S. 67 provides for the revenues of the Board, in so far as they are available. to be distributed in the order mentioned in Cls. 1 to IO. After adjustments have been made in respect of Cls. l to 9, Cl. 10 provides for the balance to be appropriated to a fund to be called the development fund. Clause 10 further provides that the development fund is to be utilised for two purposes, (a) purposes beneficial, in the opinion of the Board, to electricity development in the State; (2) repayment of loans advanced to the Board under S. 64 and required to be paid. It is after this that the proviso, on which reliance is placed by the respondents, states that where no such loan is outstanding, one-half of the balance shall be credited to the consolidated fund of the State. In the counter-affidavit filed on behalf of the Board, it has been stated that ever since its constitution, it has been carrying on its operations at a loss and there has been no occasion when any part of its revenues has been passed to the consolidated fund of the State. We have no hesitation to accept this statement made on behalf of the Board.Even otherwise, before the proviso can come into operation, there are several other items in respect of which adjustments will have to be made, and there will be no occasion at all for the proviso to come into effect. We are also not inclined to accept the contention of the respondents that with a view to give effect to the proviso. the Board will so fix the tariffs, as to enable them to have huge surplus, after meeting the various adjustments. In case such a thing happens in future, the proviso, which is clearly severable, may have to be struck down. Therefore, this ground of attack ? that there is a colourable exercise of taxing power, cannot be accepted.After having charged the Board under S. 18 to supply and distribute electricity in the most efficient and economical manner, as already pointed out, S. 59 states that the Board shall not, as far as practicable, carry on its operations under the Act at a loss. Section 63 empowers the State Government to make subventions to the Board. It is entirely within the discretion of the State Government under S. 63 to make subventions to the Board. We are referring to this aspect, because it has been stressed on behalf of the respondents that any development schemes in respect of sparse areas should be done by the Board only with the subventions which the State Government pays and not by charging the consumers in the compact areas and sparse areas at uniform tariff.e question of the Board showing undue preference to any person in fixing the tariffs and terms and conditions for supply of electricity will not arise when the Board frames uniform tariffs under sub-ss. (I) and (2). When the entire tariff is uniform for every consumer, there is no question of any undue preference as every customer will pay the same amount for the same benefit received by him. Sub-s. (3) of S. 49 recognises the power of the Board to fix different tariffs for the supply of electricity and it is really here, if at all, that an occasion for any undue preference being shown, may arise. Therefore, in our opinion, sub-s. (4) will control the action of the Board under sub-s. (3) of S. 49. We are not inclined to accept the contention of the respondents that the consumers in compact area cannot be treated as on par with the consumers in sparse area and that uniform tariffs cannot be levied on both. In this case, we have already referred to the fact that both the respondents are consumers of low tension electricity and that uniform tariffs have been levied for the entire State of Maharashtra excepting certain types of consumers in Poona area.To conclude we are of the opinion, that the Board had ample powers to frame uniform tariffs as it has done in the case before us and the levy ishave already rejected the contention of the respondents in this regard and we have held that the cost of supply is only one of the factors to be taken into account in fixing the tariff. If that is so, it follows, that in this case, there is no question of any levy of tax by Parliament through the medium of the Board. By reference to the proviso to sub-cl. (b) of Cl (10) of S. 67, it is further urged by the respondents that the Board may fix tariffs in such a way that large surplus may be found by them from which one-half will be credited to the consolidated fund of the State. This action, according to the respondents, amounts to levy of tax for which there is no power in law. We are not inclined to accept this contention either. Section 67 of the Supply Act which occurs in Chapter VI relating to the Boards finance, accounts and audit, deals with priority of inabilities of the Board. After meeting its operations, maintenance and management expenses and providing for the payment of tax on its income and profits, S. 67 provides for the revenues of the Board, in so far as they are available. to be distributed in the order mentioned in Cls. 1 to IO. After adjustments have been made in respect of Cls. l to 9, Cl. 10 provides for the balance to be appropriated to a fund to be called the development fund. Clause 10 further provides that the development fund is to be utilised for two purposes, (a) purposes beneficial, in the opinion of the Board, to electricity development in the State; (2) repayment of loans advanced to the Board under S. 64 and required to be paid. It is after this that the proviso, on which reliance is placed by the respondents, states that where no such loan is outstanding, one-half of the balance shall be credited to the consolidated fund of the State. In the counter-affidavit filed on behalf of the Board, it has been stated that ever since its constitution, it has been carrying on its operations at a loss and there has been no occasion when any part of its revenues has been passed to the consolidated fund of the State. We have no hesitation to accept this statement made on behalf of the Board.Even otherwise, before the proviso can come into operation, there are several other items in respect of which adjustments will have to be made, and there will be no occasion at all for the proviso to come into effect. We are also not inclined to accept the contention of the respondents that with a view to give effect to the proviso. the Board will so fix the tariffs, as to enable them to have huge surplus, after meeting the various adjustments. In case such a thing happens in future, the proviso, which is clearly severable, may have to be struck down. Therefore, this ground of attack ? that there is a colourable exercise of taxing power, cannot befirst blush, it may appear that this contention has considerable force; but we are satisfied that no such unguided or arbitrary power has been conferred on the Board either in the matter of framing uniform tariffs or in the matter of fixing different tariffs for the supply of electricity to any person, not being a licensee. No doubt, the maximum as such, has not been fixed in the statute. But, in our opinion, there are sufficient restrictions placed upon the power of the Board. In this connection, reference may be made to some of the sections of the Supply Act. Section 16, as we have already indicated, provides for the State Government constituting a State Electricity Consultative Council for the State. That Council consists of the representatives of the various interests including representatives of consumers of electricity. The Board is bound to place before the State Electricity Consultative Council under sub-s. (6) the annual financial statement and supplementary statement and a duty is cast upon the Board to take into consideration any comments made on such statement. This annual financial statement will have then to be submitted to the State Government under S. 01. Under that section, in February of each year, the Board has to submit to the State Government an annual financial statement in the prescribed form, of the estimated capital and revenue receipts and expenditure for the ensuing year. That statement, under sub-s. (3) has to be placed before the State Legislature and it is open to discussion. Again, sub-s. (4) of S. 61 casts a duty on the Board to take into consideration any comments made on the said statement in the State Legislature. Section 75 again provides for the Board submitting to the State Government a report giving an account of its activities during the previous financial year as also an account of its activities which are likely to be undertaken by it in the next financial year. The State Government is to place the said report before the State Legislature.We have already indicated, by reference to R. 57, Cl. (q) of the rules framed by the State of Maharashtra that details of tariff will have to be furnished by the Board in its annual report. Under Cl. (j) of S. 79, the Board has also to make regulations laying down the principles governing the supply of electricity by it to persons other than licensees under S. 49.In our opinion, al] these provisions have the effect of properly guiding the activities of the Board, in its clearings with the consumers including the levy of tariffs. Section 49 itself is hedged in by various restrictions and directions which the Board will have to comply in the matter of framing uniform tariffs or in the matter of fixing different tariffs, and that section, also in our opinion, provides a proper guide-line for framing uniform tariffs and different tariffs. Therefore, in particular, it may be noted that the extension and cheapening of supplies of electricity to sparsely developed areas under Clause (d) of Section 49 (2) of the Act can only be complied with by keeping the uniform rates at a minimum, consistently with the requirement, under Section 59, of not running at a loss. Therefore, we are satisfied, that Section 49 is not, in any way, bad on the ground that it gives an unguided and arbitrary power to the Board to fix its tariffs as itI of the sixth schedule provides that the licensee shall so adjust his charges for the sale of electricity, whether by enhancing or reducing them that his clear profit in any year of account shall not, as far as possible, exceed the amount of reasonable return. It is argued that while restrictions have been placed on the licensees, no such restrictions have been placed on the Board.The distinction sought to be pointed out, in our opinion, has no substance. The licensees are persons who must have invested considerable capital in the matter of their business, and obviously, the Legislature thought that some directions will have to be given so as to enable them to have a reasonable return. But we have already indicated that sufficient guidance has been laid down in the matter of fixing of tariffs by the Board. Therefore this ground of attack also cannot be sustained.Therefore, both the grounds of attack, levelled by the respondents, will have to beare not inclined to accept this contention of the respondents. Section 24 of the Amendment Act, in our opinion, deals with all rates, as a matter of fact fixed under Section 49 of the Act. In this case, the Board has fixed tariffs under Section 49 of the Act. Therefore, Section 24 of the Amendment Act has full effect and force.The result is that all the contentions of the respondents fail.
| 1 | 9,724 | 2,862 |
### 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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power, cannot be accepted.34. The next ground of attack against S. 49 is that it gives an unguided and arbitrary power to the Board to fix the tariff as it likes, and not maximum limit for the tariffs that may be fixed by the Board, has been stated. On first blush, it may appear that this contention has considerable force; but we are satisfied that no such unguided or arbitrary power has been conferred on the Board either in the matter of framing uniform tariffs or in the matter of fixing different tariffs for the supply of electricity to any person, not being a licensee. No doubt, the maximum as such, has not been fixed in the statute. But, in our opinion, there are sufficient restrictions placed upon the power of the Board. In this connection, reference may be made to some of the sections of the Supply Act. Section 16, as we have already indicated, provides for the State Government constituting a State Electricity Consultative Council for the State. That Council consists of the representatives of the various interests including representatives of consumers of electricity. The Board is bound to place before the State Electricity Consultative Council under sub-s. (6) the annual financial statement and supplementary statement and a duty is cast upon the Board to take into consideration any comments made on such statement. This annual financial statement will have then to be submitted to the State Government under S. 01. Under that section, in February of each year, the Board has to submit to the State Government an annual financial statement in the prescribed form, of the estimated capital and revenue receipts and expenditure for the ensuing year. That statement, under sub-s. (3) has to be placed before the State Legislature and it is open to discussion. Again, sub-s. (4) of S. 61 casts a duty on the Board to take into consideration any comments made on the said statement in the State Legislature. Section 75 again provides for the Board submitting to the State Government a report giving an account of its activities during the previous financial year as also an account of its activities which are likely to be undertaken by it in the next financial year. The State Government is to place the said report before the State Legislature.35. We have already indicated, by reference to R. 57, Cl. (q) of the rules framed by the State of Maharashtra that details of tariff will have to be furnished by the Board in its annual report. Under Cl. (j) of S. 79, the Board has also to make regulations laying down the principles governing the supply of electricity by it to persons other than licensees under S. 49.In our opinion, al] these provisions have the effect of properly guiding the activities of the Board, in its clearings with the consumers including the levy of tariffs. Section 49 itself is hedged in by various restrictions and directions which the Board will have to comply in the matter of framing uniform tariffs or in the matter of fixing different tariffs, and that section, also in our opinion, provides a proper guide-line for framing uniform tariffs and different tariffs. Therefore, in particular, it may be noted that the extension and cheapening of supplies of electricity to sparsely developed areas under Clause (d) of Section 49 (2) of the Act can only be complied with by keeping the uniform rates at a minimum, consistently with the requirement, under Section 59, of not running at a loss. Therefore, we are satisfied, that Section 49 is not, in any way, bad on the ground that it gives an unguided and arbitrary power to the Board to fix its tariffs as it likes.36. The next ground of attack is that consumers who are supplied electricity by the licensees are differently treated from similar consumers under the Board. In this connection, reference is made to Section 57 of the Supply Act which provides for the 6th and 7th schedule to be deemed to be incorporated in the licence of every licensee. Clause I of the sixth schedule provides that the licensee shall so adjust his charges for the sale of electricity, whether by enhancing or reducing them that his clear profit in any year of account shall not, as far as possible, exceed the amount of reasonable return. It is argued that while restrictions have been placed on the licensees, no such restrictions have been placed on the Board.The distinction sought to be pointed out, in our opinion, has no substance. The licensees are persons who must have invested considerable capital in the matter of their business, and obviously, the Legislature thought that some directions will have to be given so as to enable them to have a reasonable return. But we have already indicated that sufficient guidance has been laid down in the matter of fixing of tariffs by the Board. Therefore this ground of attack also cannot be sustained.37. Therefore, both the grounds of attack, levelled by the respondents, will have to be rejected.38. On behalf of the respondents, a feeble attempt was made to show that Section 24 of the Amendment Act has not valid dated the levy and collection in these cases. According to the respondents, in this case, there is nothing to show that the provisions of Section 49, as amended, which is deemed to have been in force at all material times, have been complied with by the Board before the levy was made, and therefore, the levy in this case cannot be sustained. We are not inclined to accept this contention of the respondents. Section 24 of the Amendment Act, in our opinion, deals with all rates, as a matter of fact fixed under Section 49 of the Act. In this case, the Board has fixed tariffs under Section 49 of the Act. Therefore, Section 24 of the Amendment Act has full effect and force.39. The result is that all the contentions of the respondents fail.
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no such loan is outstanding, one-half of the balance shall be credited to the consolidated fund of the State. In the counter-affidavit filed on behalf of the Board, it has been stated that ever since its constitution, it has been carrying on its operations at a loss and there has been no occasion when any part of its revenues has been passed to the consolidated fund of the State. We have no hesitation to accept this statement made on behalf of the Board.Even otherwise, before the proviso can come into operation, there are several other items in respect of which adjustments will have to be made, and there will be no occasion at all for the proviso to come into effect. We are also not inclined to accept the contention of the respondents that with a view to give effect to the proviso. the Board will so fix the tariffs, as to enable them to have huge surplus, after meeting the various adjustments. In case such a thing happens in future, the proviso, which is clearly severable, may have to be struck down. Therefore, this ground of attack ? that there is a colourable exercise of taxing power, cannot befirst blush, it may appear that this contention has considerable force; but we are satisfied that no such unguided or arbitrary power has been conferred on the Board either in the matter of framing uniform tariffs or in the matter of fixing different tariffs for the supply of electricity to any person, not being a licensee. No doubt, the maximum as such, has not been fixed in the statute. But, in our opinion, there are sufficient restrictions placed upon the power of the Board. In this connection, reference may be made to some of the sections of the Supply Act. Section 16, as we have already indicated, provides for the State Government constituting a State Electricity Consultative Council for the State. That Council consists of the representatives of the various interests including representatives of consumers of electricity. The Board is bound to place before the State Electricity Consultative Council under sub-s. (6) the annual financial statement and supplementary statement and a duty is cast upon the Board to take into consideration any comments made on such statement. This annual financial statement will have then to be submitted to the State Government under S. 01. Under that section, in February of each year, the Board has to submit to the State Government an annual financial statement in the prescribed form, of the estimated capital and revenue receipts and expenditure for the ensuing year. That statement, under sub-s. (3) has to be placed before the State Legislature and it is open to discussion. Again, sub-s. (4) of S. 61 casts a duty on the Board to take into consideration any comments made on the said statement in the State Legislature. Section 75 again provides for the Board submitting to the State Government a report giving an account of its activities during the previous financial year as also an account of its activities which are likely to be undertaken by it in the next financial year. The State Government is to place the said report before the State Legislature.We have already indicated, by reference to R. 57, Cl. (q) of the rules framed by the State of Maharashtra that details of tariff will have to be furnished by the Board in its annual report. Under Cl. (j) of S. 79, the Board has also to make regulations laying down the principles governing the supply of electricity by it to persons other than licensees under S. 49.In our opinion, al] these provisions have the effect of properly guiding the activities of the Board, in its clearings with the consumers including the levy of tariffs. Section 49 itself is hedged in by various restrictions and directions which the Board will have to comply in the matter of framing uniform tariffs or in the matter of fixing different tariffs, and that section, also in our opinion, provides a proper guide-line for framing uniform tariffs and different tariffs. Therefore, in particular, it may be noted that the extension and cheapening of supplies of electricity to sparsely developed areas under Clause (d) of Section 49 (2) of the Act can only be complied with by keeping the uniform rates at a minimum, consistently with the requirement, under Section 59, of not running at a loss. Therefore, we are satisfied, that Section 49 is not, in any way, bad on the ground that it gives an unguided and arbitrary power to the Board to fix its tariffs as itI of the sixth schedule provides that the licensee shall so adjust his charges for the sale of electricity, whether by enhancing or reducing them that his clear profit in any year of account shall not, as far as possible, exceed the amount of reasonable return. It is argued that while restrictions have been placed on the licensees, no such restrictions have been placed on the Board.The distinction sought to be pointed out, in our opinion, has no substance. The licensees are persons who must have invested considerable capital in the matter of their business, and obviously, the Legislature thought that some directions will have to be given so as to enable them to have a reasonable return. But we have already indicated that sufficient guidance has been laid down in the matter of fixing of tariffs by the Board. Therefore this ground of attack also cannot be sustained.Therefore, both the grounds of attack, levelled by the respondents, will have to beare not inclined to accept this contention of the respondents. Section 24 of the Amendment Act, in our opinion, deals with all rates, as a matter of fact fixed under Section 49 of the Act. In this case, the Board has fixed tariffs under Section 49 of the Act. Therefore, Section 24 of the Amendment Act has full effect and force.The result is that all the contentions of the respondents fail.
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Controller of Estate Duty, Lucknow Vs. Aloke Mitra
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interested."37. The cardinal distinction between a trustee known to English law and a benamidar lies in the fact that a trustee is the legal owner of the property standing in his name and cestui que trust is only a beneficial owner, whereas in the case of a benami transaction the real owner has got the legal title though the property is in the name of the benamidar. It is well settled that the real owner can deal with the property without reference to the latter. In Gur Narayan v. Sheo Lal Singh, the Judicial Committee referred to the judgment of Sir George Farwell in Mst. Bilas Kunwar v. Dasraj Ranjit Singh, where it was observed that a benami transaction had a curious resemblance to the doctrine of English law that the trust of the legal estate results to the man who pays the purchase-money, and went on to say:"..the benamidar has no beneficial interest in the property or business that stands in his name; he represents, in fact, the real owner, and so far as their relative legal position is concerned he is a mere trustee for him."38. In Guran Ditta v. Ram Ditta the Judicial Committee reiterated the principle laid down in Gopeekrist Gosains case and observed that in case of a benami transaction, there is a resulting trust in favour of the person providing the purchase money.A benamidar has no interest at all in the property standing in his name. Where the transaction is once made out to be benami, the Court must give effect to the real and not to the nominal title subject to certain exceptions. In Mullas Hindu Law, 14th edn., p. 638, four exceptions to the normal rule are brought out. But these exceptions are not material in this case. One of the exceptions enumerated therein is that w here a benamidar sells, mortgages or otherwise transfers for value property held by him without the knowledge of the real owner, the real owner is not entitled to have the transfer set aside unless the transferee had notice, actual or constructive that the transferor was merely a benamidar. The principle is embodied in s. 41 of the Transfer of Property Act. The section makes an exception to the rule that a person cannot confer a better title than he has. The section is based on the well-known passage from the judgment of the Judicial Committee in Ramcoomar Koondoo v. Macqueen:"It is a principle of natural equity, which must be universally applicable, that where one man allows another to hold himself out as the owner of an estate, and a third person purchases it for value from the apparent owner in the belief that he is the real owner, the man who so allows the other to hold himself out shall not be permitted to recover upon his sec ret title unless he can other throw that of the purchaser by showing, either that he had direct notice, or something which amounts to constructive notice, of the real title, or that there existed circumstances which ought to have put him upon an inquiry that, if prosecuted, would have led to a discovery of it."39. A benamidar is an ostensible owner and if a person purchases from a benamidar, the real owner cannot recover unless he shows that the purchaser had actual or constructive notice of the real title. But from this it does not follow that the benamidar has real title to the property, he is merely an ostensible owner thereof.The law is succinctly stated by Mayne in his Treatise on Hindu Law, 11th edn., at p. 953, in the following terms:"A benami transaction is one where one buys property in the name of another or gratuitously transfers his property to another, without indicating an intention to benefit the other. The benamidar, therefore, has no beneficial interest in the property or business that stands in his name; he represents in fact the real owner and so far as their relative legal position is concerned, he is a mere trustee for him. In other words, a benami purchase or conveyance leads to a resulting trust in India, just as a purchase or transfer under similar circumstances leads to a resulting trust in England. The general rule and principle of the Indian law as to resulting trusts differs but little if at all, from the general rule of English law upon the same subject."(See also: Shree Meenakshi Mills Ltd. v. C.I.T. (1957) 31 ITR 28 per Venkatarama Ayyar J., and Thakur Bhim Singh v. Thakur Kan Singh [1980] 3 SCC 72. Per Venkataramiah J.]40. In the light of these settled principles the liability to pay estate duty under s. 5 (1) of the Act arises upon the death of the real owner and not of the benamidar, who is merely an ostensible owner. The test lies in whether upon the death of the benamidar, there would be incidence of liability to estate duty. If the view of the High Court were to be accepted, the estate left by th e deceased would escape the duty altogether. We do not see how s. 6 of the Act comes into play at all in this case.41. In view of the finding that the shares were purchased by the deceased benami in the name of his wife and sons etc., the real ownership of the property was vested in the deceased was entitled to deal with the same as if it were his own and the benamidars held it in trust under s. 82 of the Trusts Act, 1882 for the benefit of the deceased. The benamidars, subject to the equities flowing from s. 41 of the Transfer of Property Act, could not deal with the shares in any way. Accordingly, the estate belonged to the deceased who died possessed of the same, and under s. 5(1) of the Act the entire value of the shares was includible in the principle value of the estate of the deceased on his death.
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1[ds]No clear exposition was given or required to be given on the facts of the case of what was the precise effect of the two section s or their relationship to one another. There followed a period of uncertainty as to the precise relationship between the two sections, although subsequent to Arnholzs case section 1 alone was held to be still capable of imposing a charge of duty, and where both sections 1 and 2 applied, the property was held to be dutiable under both concurrently. If the property which passed was identical with the property which would otherwise be deemed to pass, the question under which head it shall be taxed was purely academic. Estate duty is not leviable more than once on the same death in respect of any property, even if it is chargeable under more than oneWeirs Settlement Trusts, Re.Mc Pherson v. Inland RevenueCommissioners, the contention on behalf of the tax- payer was that the decision in PublicTrustee v. Inland RevenueCommissioners (Re. Arnholz) established the complete reverse of the view expressed by Lord Macnaghten in Earl Cowleys case, that is, established that section 2 exhaustively laid down the only circumstances in which estate duty was leviable, and that if the circumstance could not be brought within s. 1, as being circumstances set out in s. 2, that was the end of the matter, the phrase in s. 1 property-which passes on the death having no content independent of s.question is a difficult one on which there may well be divergence of opinion, as reflected in these English decisions which largely turn on the construction of ss. 1 and 2 of the Finance Act, 1894, the provisions of which are somewhat similar to those of ss. 5 and 6 of the Act. The simultaneous existence of a right to tax under ss. 1 and 2 was inconsistent with the well-known statement of Lord Macnaghten in Earl Cowleys case and could not, therefore, be sustained. Nevertheless, the trend of judicial opinion in England rightly changed, as we think that Lord Macnaghtens opinion ought not to be regarded as subject to suchare in agreement with the observations made by the learned Judge on the relative scope of s. 5 and s. 6 of the Act, which bring out the true legislative intent.In applying the Act to any particular transaction, regard must be had to its substance, that is, its true legal effect, rather to the form in which it is carried out. On the facts found, it has been established beyond doubt that the deceased was the real owner of the shares. The ownership which the deceased had in the shares passed on his death and must be brought to charge under sub-s. (1) of s.that has been said above is sufficient to dispose of the appeal. It, however, becomes necessary to deal with the law relating to benami transactions as there is some misconception as to the nature of the rights of a benamidar. What follows is purelylaw in this matter is not in doubt and is authoritatively stated by a long line of decisions of the Privy Council starting from the well known case of Gopeekrist Gosain v. Gungapersaud Gosain to Sura Lakshmiah Chetty v. Kothandarama Pillai and of this Court in Shree Meenakshi Mills Ltd. v. C.I.T.. As observed by Knight Bruce L.J. in Gopeekrist Gosains case, the doctrine of advancement is not applicable in India, so as to raise the question of a resulting trust. When a property is purchased by a husban d in the name of his wife, or by a father in the name of his son, it must be presumed that they are benamidars, and if they claim it as their own by alleging that the husband or the father intended to make a gift of the property to them, t he onus rests upon them to establish such abenamidar is an ostensible owner and if a person purchases from a benamidar, the real owner cannot recover unless he shows that the purchaser had actual or constructive notice of the real title. But from this it does not follow that the benamidar has real title to the property, he is merely an ostensible ownerthe light of these settled principles the liability to pay estate duty under s. 5 (1) of the Act arises upon the death of the real owner and not of the benamidar, who is merely an ostensible owner. The test lies in whether upon the death of the benamidar, there would be incidence of liability to estate duty. If the view of the High Court were to be accepted, the estate left by th e deceased would escape the duty altogether. We do not see how s. 6 of the Act comes into play at all in thisview of the finding that the shares were purchased by the deceased benami in the name of his wife and sons etc., the real ownership of the property was vested in the deceased was entitled to deal with the same as if it were his own and the benamidars held it in trust under s. 82 ofthe Trusts Act, 1882 for the benefit of the deceased. The benamidars, subject to the equities flowing from s. 41 of the Transfer of Property Act, could not deal with the shares in any way. Accordingly, the estate belonged to the deceased who died possessed of the same, and under s. 5(1) of the Act the entire value of the shares was includible in the principle value of the estate of the deceased on hisdepends upon the precise effect of s. 5(1) and s. 6 and their relation ship to one another namely, whether the chargeability of estate duty under s. 5(1) of the Act, is limited and controlled by s. 6.
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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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interested."37. The cardinal distinction between a trustee known to English law and a benamidar lies in the fact that a trustee is the legal owner of the property standing in his name and cestui que trust is only a beneficial owner, whereas in the case of a benami transaction the real owner has got the legal title though the property is in the name of the benamidar. It is well settled that the real owner can deal with the property without reference to the latter. In Gur Narayan v. Sheo Lal Singh, the Judicial Committee referred to the judgment of Sir George Farwell in Mst. Bilas Kunwar v. Dasraj Ranjit Singh, where it was observed that a benami transaction had a curious resemblance to the doctrine of English law that the trust of the legal estate results to the man who pays the purchase-money, and went on to say:"..the benamidar has no beneficial interest in the property or business that stands in his name; he represents, in fact, the real owner, and so far as their relative legal position is concerned he is a mere trustee for him."38. In Guran Ditta v. Ram Ditta the Judicial Committee reiterated the principle laid down in Gopeekrist Gosains case and observed that in case of a benami transaction, there is a resulting trust in favour of the person providing the purchase money.A benamidar has no interest at all in the property standing in his name. Where the transaction is once made out to be benami, the Court must give effect to the real and not to the nominal title subject to certain exceptions. In Mullas Hindu Law, 14th edn., p. 638, four exceptions to the normal rule are brought out. But these exceptions are not material in this case. One of the exceptions enumerated therein is that w here a benamidar sells, mortgages or otherwise transfers for value property held by him without the knowledge of the real owner, the real owner is not entitled to have the transfer set aside unless the transferee had notice, actual or constructive that the transferor was merely a benamidar. The principle is embodied in s. 41 of the Transfer of Property Act. The section makes an exception to the rule that a person cannot confer a better title than he has. The section is based on the well-known passage from the judgment of the Judicial Committee in Ramcoomar Koondoo v. Macqueen:"It is a principle of natural equity, which must be universally applicable, that where one man allows another to hold himself out as the owner of an estate, and a third person purchases it for value from the apparent owner in the belief that he is the real owner, the man who so allows the other to hold himself out shall not be permitted to recover upon his sec ret title unless he can other throw that of the purchaser by showing, either that he had direct notice, or something which amounts to constructive notice, of the real title, or that there existed circumstances which ought to have put him upon an inquiry that, if prosecuted, would have led to a discovery of it."39. A benamidar is an ostensible owner and if a person purchases from a benamidar, the real owner cannot recover unless he shows that the purchaser had actual or constructive notice of the real title. But from this it does not follow that the benamidar has real title to the property, he is merely an ostensible owner thereof.The law is succinctly stated by Mayne in his Treatise on Hindu Law, 11th edn., at p. 953, in the following terms:"A benami transaction is one where one buys property in the name of another or gratuitously transfers his property to another, without indicating an intention to benefit the other. The benamidar, therefore, has no beneficial interest in the property or business that stands in his name; he represents in fact the real owner and so far as their relative legal position is concerned, he is a mere trustee for him. In other words, a benami purchase or conveyance leads to a resulting trust in India, just as a purchase or transfer under similar circumstances leads to a resulting trust in England. The general rule and principle of the Indian law as to resulting trusts differs but little if at all, from the general rule of English law upon the same subject."(See also: Shree Meenakshi Mills Ltd. v. C.I.T. (1957) 31 ITR 28 per Venkatarama Ayyar J., and Thakur Bhim Singh v. Thakur Kan Singh [1980] 3 SCC 72. Per Venkataramiah J.]40. In the light of these settled principles the liability to pay estate duty under s. 5 (1) of the Act arises upon the death of the real owner and not of the benamidar, who is merely an ostensible owner. The test lies in whether upon the death of the benamidar, there would be incidence of liability to estate duty. If the view of the High Court were to be accepted, the estate left by th e deceased would escape the duty altogether. We do not see how s. 6 of the Act comes into play at all in this case.41. In view of the finding that the shares were purchased by the deceased benami in the name of his wife and sons etc., the real ownership of the property was vested in the deceased was entitled to deal with the same as if it were his own and the benamidars held it in trust under s. 82 of the Trusts Act, 1882 for the benefit of the deceased. The benamidars, subject to the equities flowing from s. 41 of the Transfer of Property Act, could not deal with the shares in any way. Accordingly, the estate belonged to the deceased who died possessed of the same, and under s. 5(1) of the Act the entire value of the shares was includible in the principle value of the estate of the deceased on his death.
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No clear exposition was given or required to be given on the facts of the case of what was the precise effect of the two section s or their relationship to one another. There followed a period of uncertainty as to the precise relationship between the two sections, although subsequent to Arnholzs case section 1 alone was held to be still capable of imposing a charge of duty, and where both sections 1 and 2 applied, the property was held to be dutiable under both concurrently. If the property which passed was identical with the property which would otherwise be deemed to pass, the question under which head it shall be taxed was purely academic. Estate duty is not leviable more than once on the same death in respect of any property, even if it is chargeable under more than oneWeirs Settlement Trusts, Re.Mc Pherson v. Inland RevenueCommissioners, the contention on behalf of the tax- payer was that the decision in PublicTrustee v. Inland RevenueCommissioners (Re. Arnholz) established the complete reverse of the view expressed by Lord Macnaghten in Earl Cowleys case, that is, established that section 2 exhaustively laid down the only circumstances in which estate duty was leviable, and that if the circumstance could not be brought within s. 1, as being circumstances set out in s. 2, that was the end of the matter, the phrase in s. 1 property-which passes on the death having no content independent of s.question is a difficult one on which there may well be divergence of opinion, as reflected in these English decisions which largely turn on the construction of ss. 1 and 2 of the Finance Act, 1894, the provisions of which are somewhat similar to those of ss. 5 and 6 of the Act. The simultaneous existence of a right to tax under ss. 1 and 2 was inconsistent with the well-known statement of Lord Macnaghten in Earl Cowleys case and could not, therefore, be sustained. Nevertheless, the trend of judicial opinion in England rightly changed, as we think that Lord Macnaghtens opinion ought not to be regarded as subject to suchare in agreement with the observations made by the learned Judge on the relative scope of s. 5 and s. 6 of the Act, which bring out the true legislative intent.In applying the Act to any particular transaction, regard must be had to its substance, that is, its true legal effect, rather to the form in which it is carried out. On the facts found, it has been established beyond doubt that the deceased was the real owner of the shares. The ownership which the deceased had in the shares passed on his death and must be brought to charge under sub-s. (1) of s.that has been said above is sufficient to dispose of the appeal. It, however, becomes necessary to deal with the law relating to benami transactions as there is some misconception as to the nature of the rights of a benamidar. What follows is purelylaw in this matter is not in doubt and is authoritatively stated by a long line of decisions of the Privy Council starting from the well known case of Gopeekrist Gosain v. Gungapersaud Gosain to Sura Lakshmiah Chetty v. Kothandarama Pillai and of this Court in Shree Meenakshi Mills Ltd. v. C.I.T.. As observed by Knight Bruce L.J. in Gopeekrist Gosains case, the doctrine of advancement is not applicable in India, so as to raise the question of a resulting trust. When a property is purchased by a husban d in the name of his wife, or by a father in the name of his son, it must be presumed that they are benamidars, and if they claim it as their own by alleging that the husband or the father intended to make a gift of the property to them, t he onus rests upon them to establish such abenamidar is an ostensible owner and if a person purchases from a benamidar, the real owner cannot recover unless he shows that the purchaser had actual or constructive notice of the real title. But from this it does not follow that the benamidar has real title to the property, he is merely an ostensible ownerthe light of these settled principles the liability to pay estate duty under s. 5 (1) of the Act arises upon the death of the real owner and not of the benamidar, who is merely an ostensible owner. The test lies in whether upon the death of the benamidar, there would be incidence of liability to estate duty. If the view of the High Court were to be accepted, the estate left by th e deceased would escape the duty altogether. We do not see how s. 6 of the Act comes into play at all in thisview of the finding that the shares were purchased by the deceased benami in the name of his wife and sons etc., the real ownership of the property was vested in the deceased was entitled to deal with the same as if it were his own and the benamidars held it in trust under s. 82 ofthe Trusts Act, 1882 for the benefit of the deceased. The benamidars, subject to the equities flowing from s. 41 of the Transfer of Property Act, could not deal with the shares in any way. Accordingly, the estate belonged to the deceased who died possessed of the same, and under s. 5(1) of the Act the entire value of the shares was includible in the principle value of the estate of the deceased on hisdepends upon the precise effect of s. 5(1) and s. 6 and their relation ship to one another namely, whether the chargeability of estate duty under s. 5(1) of the Act, is limited and controlled by s. 6.
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Municipal Corpn. Of Delhi Vs. Kamla Devi
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It is also brought to our notice that the appeal filed by Kamla Devi against the assessment order dated January 28, 1991, was dismissed for default on September 12, 1994. 7. The first question is whether the filing of this suit by Kamla Devi in Ghaziabad Court was a proceeding taken bona fide by her or whether it was only a sharp practice designed to abuse the process of law and to take unfair advantage over the Corporation. On a consideration of the facts and circumstances of the case, we are satisfied that it was a clear case of abuse of process of Court and of law. We are also satisfied that the averment made in para 2 of the plaint to the effect that the officers of the appellant-Corporation went to Ghaziabad to attach the movables of Kamla Devi or her grand-children to realise the tax under the order dated January 28, 1991, is a total falsehood and was a mere pretence to create jurisdiction in Ghaziabad Court. Not a single document or any other scrap of paper has been filed before the Ghaziabad Court in support of the said allegation. Moreover, the frame of the suit and the language and terms in which the declaration and prohibitory injunction are asked for suggest a clear attempt to overreach the process of Court. The object clearly was to obtain a declaration that the assessment order dated January 28, 1991, is illegal and invalid from a Court outside Delhi. The fact that Kamla Devi (plaintiff) chose to conceal the fact of her filing the appeal against the said assessment order is also indicative of the mala fides on her part. It is true that the Court has limited the prohibitory injunction only to properties in Ghaziabad but it has granted a declaration that the very assessment order is void and illegal which means that it cannot be enforced even within the limits of Delhi Municipal Corporation. In the Special Leave Petition, it is stated by the Corporation that the Bill of demand pursuant to the assessment order aforesaid was sent only on July 8, 1991, to the respondent whereas the suit was filed on April 19, 1991. Once this Court is satisfied that Kamla Devi has abused the process of law and misused the legal system, the objections put forward by the respondents counsel are of no consequence. This Court is entitled to act in such cases to prevent such abuse and misuse. 8. In Oil and Natural Gas Commission, (1994 AIR SCW 3287), this Court was dealing with a case where Engineers India Lid (E. I. L.) acting as consultants for Oil and Natural Gas Commission (O. N. G. C.) issued an advertisement in the newspapers of the country inviting tenders for a particular work to be carried out at Hazira complex in Gujarat. According to the advertisement, the tenders were to be communicated to E. I. L. at Delhi. The respondent-Company (NICCO) having its registered office at Calcutta submitted a tender which was considered along with other tenders received at New Delhi and was rejected. Tender of another party was accepted. Thereupon, NICCO filed a writ petition in the Calcutta High Court praying that ONGC be restrained from awarding the contract to such other party and, if already awarded. to cancel the same. In the writ petition, an allegation was made by NICCO that it had come to know of the tender from the publication in the newspaper Times of India within the jurisdiction of the Calcutta High Court, that it had submitted its tender from its registered office located within the jurisdiction of the Calcutta High Court and that further correspondence in that behalf was also done from its said registered office at Calcutta. On the said averments, it was submitted that the Calcutta High Court had jurisdiction in the matter. NICCO also asked for and obtained certain interim orders which were challenged under Article 136 of the Constitution. Before this Court, NICCO relied upon a fax message sent by O. N. G. C. /E. I. L. to NICCO on its Calcutta address. It was a reply to a letter sent by NICCO. It was submitted that in view of the said communication along with other facts mentioned in the writ petition, the Calcutta High Court did have the jurisdiction to entertain the said writ petition. It was held by this Court that even if the averments in the writ petition are taken as true, it cannot be said that a part of the cause of action had arisen within the jurisdiction of the Calcutta High Court. This Court pointed out that the advertisement itself mentioned that the tenders should be submitted to E.I.L., at New Delhi, that they would be scrutinised at New Delhi and that the decision to accept or reject would also be taken at New Delhi. (The work was, of course, to be carried out in Gujarat.) It was further held that merely because NICCO read the advertisement at Calcutta or that it submitted its tender from Calcutta or that it made representations or that a fax message was sent to it on its Calcutta address did not constitute facts forming integral part of the cause of action. It was held that NICCO did not act bona fide in invoking the jurisdiction of the Calcutta High Court and that the filing of the writ petition was an abuse of the process of Court. Accordingly, the appeal was allowed, the orders of the Calcutta High Court were set aside and exemplary costs in a sum of Rs. 50,000/- were imposed upon NICCO. In our opinion, the principle of the said decision clearly applies here. Indeed, the present case is a more gross one. In this case, there is no mention that any demand notice or bill was sent to Kamla Devi at Ghaziabad address. We have already held that the averment in Para 2 of the plaint was a mere pretence and a total fabrication.
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1[ds]On a consideration of the facts and circumstances of the case, we are satisfied that it was a clear case of abuse of process of Court and of law. We are also satisfied that the averment made in para 2 of the plaint to the effect that the officers of the appellant-Corporation went to Ghaziabad to attach the movables of Kamla Devi or her grand-children to realise the tax under the order dated January 28, 1991, is a total falsehood and was a mere pretence to create jurisdiction in Ghaziabad Court. Not a single document or any other scrap of paper has been filed before the Ghaziabad Court in support of the said allegation. Moreover, the frame of the suit and the language and terms in which the declaration and prohibitory injunction are asked for suggest a clear attempt to overreach the process of Court. The object clearly was to obtain a declaration that the assessment order dated January 28, 1991, is illegal and invalid from a Court outside Delhi. The fact that Kamla Devi (plaintiff) chose to conceal the fact of her filing the appeal against the said assessment order is also indicative of the mala fides on her part. It is true that the Court has limited the prohibitory injunction only to properties in Ghaziabad but it has granted a declaration that the very assessment order is void and illegal which means that it cannot be enforced even within the limits of Delhi Municipal Corporation. In the Special Leave Petition, it is stated by the Corporation that the Bill of demand pursuant to the assessment order aforesaid was sent only on July 8, 1991, to the respondent whereas the suit was filed on April 19, 1991. Once this Court is satisfied that Kamla Devi has abused the process of law and misused the legal system, the objections put forward by the respondents counsel are of no consequence. This Court is entitled to act in such cases to prevent such abuse andour opinion, the principle of the said decision clearly applies here. Indeed, the present case is a more gross one. In this case, there is no mention that any demand notice or bill was sent to Kamla Devi at Ghaziabad address. We have already held that the averment in Para 2 of the plaint was a mere pretence and a total fabrication.
| 1 | 2,679 | 428 |
### 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:
It is also brought to our notice that the appeal filed by Kamla Devi against the assessment order dated January 28, 1991, was dismissed for default on September 12, 1994. 7. The first question is whether the filing of this suit by Kamla Devi in Ghaziabad Court was a proceeding taken bona fide by her or whether it was only a sharp practice designed to abuse the process of law and to take unfair advantage over the Corporation. On a consideration of the facts and circumstances of the case, we are satisfied that it was a clear case of abuse of process of Court and of law. We are also satisfied that the averment made in para 2 of the plaint to the effect that the officers of the appellant-Corporation went to Ghaziabad to attach the movables of Kamla Devi or her grand-children to realise the tax under the order dated January 28, 1991, is a total falsehood and was a mere pretence to create jurisdiction in Ghaziabad Court. Not a single document or any other scrap of paper has been filed before the Ghaziabad Court in support of the said allegation. Moreover, the frame of the suit and the language and terms in which the declaration and prohibitory injunction are asked for suggest a clear attempt to overreach the process of Court. The object clearly was to obtain a declaration that the assessment order dated January 28, 1991, is illegal and invalid from a Court outside Delhi. The fact that Kamla Devi (plaintiff) chose to conceal the fact of her filing the appeal against the said assessment order is also indicative of the mala fides on her part. It is true that the Court has limited the prohibitory injunction only to properties in Ghaziabad but it has granted a declaration that the very assessment order is void and illegal which means that it cannot be enforced even within the limits of Delhi Municipal Corporation. In the Special Leave Petition, it is stated by the Corporation that the Bill of demand pursuant to the assessment order aforesaid was sent only on July 8, 1991, to the respondent whereas the suit was filed on April 19, 1991. Once this Court is satisfied that Kamla Devi has abused the process of law and misused the legal system, the objections put forward by the respondents counsel are of no consequence. This Court is entitled to act in such cases to prevent such abuse and misuse. 8. In Oil and Natural Gas Commission, (1994 AIR SCW 3287), this Court was dealing with a case where Engineers India Lid (E. I. L.) acting as consultants for Oil and Natural Gas Commission (O. N. G. C.) issued an advertisement in the newspapers of the country inviting tenders for a particular work to be carried out at Hazira complex in Gujarat. According to the advertisement, the tenders were to be communicated to E. I. L. at Delhi. The respondent-Company (NICCO) having its registered office at Calcutta submitted a tender which was considered along with other tenders received at New Delhi and was rejected. Tender of another party was accepted. Thereupon, NICCO filed a writ petition in the Calcutta High Court praying that ONGC be restrained from awarding the contract to such other party and, if already awarded. to cancel the same. In the writ petition, an allegation was made by NICCO that it had come to know of the tender from the publication in the newspaper Times of India within the jurisdiction of the Calcutta High Court, that it had submitted its tender from its registered office located within the jurisdiction of the Calcutta High Court and that further correspondence in that behalf was also done from its said registered office at Calcutta. On the said averments, it was submitted that the Calcutta High Court had jurisdiction in the matter. NICCO also asked for and obtained certain interim orders which were challenged under Article 136 of the Constitution. Before this Court, NICCO relied upon a fax message sent by O. N. G. C. /E. I. L. to NICCO on its Calcutta address. It was a reply to a letter sent by NICCO. It was submitted that in view of the said communication along with other facts mentioned in the writ petition, the Calcutta High Court did have the jurisdiction to entertain the said writ petition. It was held by this Court that even if the averments in the writ petition are taken as true, it cannot be said that a part of the cause of action had arisen within the jurisdiction of the Calcutta High Court. This Court pointed out that the advertisement itself mentioned that the tenders should be submitted to E.I.L., at New Delhi, that they would be scrutinised at New Delhi and that the decision to accept or reject would also be taken at New Delhi. (The work was, of course, to be carried out in Gujarat.) It was further held that merely because NICCO read the advertisement at Calcutta or that it submitted its tender from Calcutta or that it made representations or that a fax message was sent to it on its Calcutta address did not constitute facts forming integral part of the cause of action. It was held that NICCO did not act bona fide in invoking the jurisdiction of the Calcutta High Court and that the filing of the writ petition was an abuse of the process of Court. Accordingly, the appeal was allowed, the orders of the Calcutta High Court were set aside and exemplary costs in a sum of Rs. 50,000/- were imposed upon NICCO. In our opinion, the principle of the said decision clearly applies here. Indeed, the present case is a more gross one. In this case, there is no mention that any demand notice or bill was sent to Kamla Devi at Ghaziabad address. We have already held that the averment in Para 2 of the plaint was a mere pretence and a total fabrication.
### Response:
1
### Explanation:
On a consideration of the facts and circumstances of the case, we are satisfied that it was a clear case of abuse of process of Court and of law. We are also satisfied that the averment made in para 2 of the plaint to the effect that the officers of the appellant-Corporation went to Ghaziabad to attach the movables of Kamla Devi or her grand-children to realise the tax under the order dated January 28, 1991, is a total falsehood and was a mere pretence to create jurisdiction in Ghaziabad Court. Not a single document or any other scrap of paper has been filed before the Ghaziabad Court in support of the said allegation. Moreover, the frame of the suit and the language and terms in which the declaration and prohibitory injunction are asked for suggest a clear attempt to overreach the process of Court. The object clearly was to obtain a declaration that the assessment order dated January 28, 1991, is illegal and invalid from a Court outside Delhi. The fact that Kamla Devi (plaintiff) chose to conceal the fact of her filing the appeal against the said assessment order is also indicative of the mala fides on her part. It is true that the Court has limited the prohibitory injunction only to properties in Ghaziabad but it has granted a declaration that the very assessment order is void and illegal which means that it cannot be enforced even within the limits of Delhi Municipal Corporation. In the Special Leave Petition, it is stated by the Corporation that the Bill of demand pursuant to the assessment order aforesaid was sent only on July 8, 1991, to the respondent whereas the suit was filed on April 19, 1991. Once this Court is satisfied that Kamla Devi has abused the process of law and misused the legal system, the objections put forward by the respondents counsel are of no consequence. This Court is entitled to act in such cases to prevent such abuse andour opinion, the principle of the said decision clearly applies here. Indeed, the present case is a more gross one. In this case, there is no mention that any demand notice or bill was sent to Kamla Devi at Ghaziabad address. We have already held that the averment in Para 2 of the plaint was a mere pretence and a total fabrication.
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Shakuntala Vs. Balkrishna
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K.G. Balakrishnan, J. 1. Leave granted. 2. The claimants in a motor accident claim are appellants before us. They are the legal heirs of one Rajashekhar Kasture who died in a motor accident. The deceased Rajashekhar Kasture was aged about 24 years at the time of his death. He was employed as Munium in Avinash and Co. On 20.7.1996, when he was travelling in a lorry to bring sugar for his employer, the lorry met with an accident and he fell down and died on the spot. 3. The claimants preferred claim contending that he was the only earning member and was earning Rs. 3000/- p.m. The respondent No.2 namely, the lorry owner contended that the deceased was working only as a office boy and was having a salary of Rs. 600/- pm. To support his plea, RW1, the owner of the company was also examined. The Tribunal after considering the evidence on either side held that the salary of the deceased must have been around Rs. 1200 p.m. and by deducting 1/3rd for his personal expenses, the monthly dependency of the claimants must have been Rs. 800/- pm. Taking the annual income as Rs. 9600/-, the total compensation was fixed at Rs. 1,53,600/- and an award was passed in favour of the claimants. Aggrieved by the same, the second respondent preferred an appeal before the High Court of Karnataka and the High Court reduced the compensation to Rs. 81,600/- under the heading loss of dependency. The judgment of the High Court is challenged before us. 4. We heard learned Counsel on either side. The High Court considered the evidence of RW1, the partner of the Avinash and Company with whom the deceased was employed. RW1 deposed that the monthly salary of the deceased was Rs. 600/-. RW1 had chosen to produce some receipts purportedly signed by the deceased but he cleverly withheld the salary register maintained by the company for the relevant period. The receipts were not originally produced but later he produced them and the Tribunal rightly declined to take note of the same. During the time of cross-examination, he admitted that the persons who were similarly employed were being paid Rs. 1,500/- p.m. It is also difficult to believe that the company would employ a person with such a meagre amount of Rs. 600/- p.m. It may aslo be noticed that the company under the management of RW1 was having 4 to 5 lorries and about 30 workers were employed under them. He must have been keeping some documents in respect of payment of salary to his workers but such documents were not produced. The Tribunal had considered the evidence in detail and came to a rational conclusion regarding the income of the deceased. The learned Single Judge without considering the evidence of RW1 simply brushed aside the whole evidence and accepted the statement of RW1 solely on the ground that the employer himself had spoken regarding the salary and it must have been taken as correct. This approach made by the High Court is not at all justified having regard to the entire facts and circumstances of the case. The High Court on flimsy reasons, interfered with the award passed by the Tribunal. The compensation awarded by the Tribunal was just and reasonable.
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1[ds]The Tribunal had considered the evidence in detail and came to a rational conclusion regarding the income of the deceased. The learned Single Judge without considering the evidence of RW1 simply brushed aside the whole evidence and accepted the statement of RW1 solely on the ground that the employer himself had spoken regarding the salary and it must have been taken as correct. This approach made by the High Court is not at all justified having regard to the entire facts and circumstances of the case. The High Court on flimsy reasons, interfered with the award passed by the Tribunal. The compensation awarded by the Tribunal was just and reasonable.
| 1 | 601 | 120 |
### 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:
K.G. Balakrishnan, J. 1. Leave granted. 2. The claimants in a motor accident claim are appellants before us. They are the legal heirs of one Rajashekhar Kasture who died in a motor accident. The deceased Rajashekhar Kasture was aged about 24 years at the time of his death. He was employed as Munium in Avinash and Co. On 20.7.1996, when he was travelling in a lorry to bring sugar for his employer, the lorry met with an accident and he fell down and died on the spot. 3. The claimants preferred claim contending that he was the only earning member and was earning Rs. 3000/- p.m. The respondent No.2 namely, the lorry owner contended that the deceased was working only as a office boy and was having a salary of Rs. 600/- pm. To support his plea, RW1, the owner of the company was also examined. The Tribunal after considering the evidence on either side held that the salary of the deceased must have been around Rs. 1200 p.m. and by deducting 1/3rd for his personal expenses, the monthly dependency of the claimants must have been Rs. 800/- pm. Taking the annual income as Rs. 9600/-, the total compensation was fixed at Rs. 1,53,600/- and an award was passed in favour of the claimants. Aggrieved by the same, the second respondent preferred an appeal before the High Court of Karnataka and the High Court reduced the compensation to Rs. 81,600/- under the heading loss of dependency. The judgment of the High Court is challenged before us. 4. We heard learned Counsel on either side. The High Court considered the evidence of RW1, the partner of the Avinash and Company with whom the deceased was employed. RW1 deposed that the monthly salary of the deceased was Rs. 600/-. RW1 had chosen to produce some receipts purportedly signed by the deceased but he cleverly withheld the salary register maintained by the company for the relevant period. The receipts were not originally produced but later he produced them and the Tribunal rightly declined to take note of the same. During the time of cross-examination, he admitted that the persons who were similarly employed were being paid Rs. 1,500/- p.m. It is also difficult to believe that the company would employ a person with such a meagre amount of Rs. 600/- p.m. It may aslo be noticed that the company under the management of RW1 was having 4 to 5 lorries and about 30 workers were employed under them. He must have been keeping some documents in respect of payment of salary to his workers but such documents were not produced. The Tribunal had considered the evidence in detail and came to a rational conclusion regarding the income of the deceased. The learned Single Judge without considering the evidence of RW1 simply brushed aside the whole evidence and accepted the statement of RW1 solely on the ground that the employer himself had spoken regarding the salary and it must have been taken as correct. This approach made by the High Court is not at all justified having regard to the entire facts and circumstances of the case. The High Court on flimsy reasons, interfered with the award passed by the Tribunal. The compensation awarded by the Tribunal was just and reasonable.
### Response:
1
### Explanation:
The Tribunal had considered the evidence in detail and came to a rational conclusion regarding the income of the deceased. The learned Single Judge without considering the evidence of RW1 simply brushed aside the whole evidence and accepted the statement of RW1 solely on the ground that the employer himself had spoken regarding the salary and it must have been taken as correct. This approach made by the High Court is not at all justified having regard to the entire facts and circumstances of the case. The High Court on flimsy reasons, interfered with the award passed by the Tribunal. The compensation awarded by the Tribunal was just and reasonable.
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Vijay Kumar Ahluwalia Vs. Bishan Chand Maheshwari
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No.1 over the suit shop, on the strength of adoption deed surfaced for the first time in these proceedings, the appellants in his leave to contest the application denied the ownership of respondent No.1 over the suit shop so also the relationship of landlord and tenant between them. The appellants also denied the bona fide need set up by respondent No.1 contending, inter alia, that alternative suitable accommodation in the building in question is available to respondent No.1 on other floors and hence the plea of bona fide need is not genuine. These were essentially the grounds on which the appellants sought leave to contest the application on merits.8. Respondent No.1 denied the averments made by the appellants in the application for leave to contest. The appellants then filed rejoinder and reiterated their grounds already taken in the application for leave to contest.9. By order dated 13.08.2012, the Additional Rent Controller dismissed the application filed by the appellants for leave to contest and passed an eviction order against the appellants from the suit shop.10. Felt aggrieved by the said order, the appellants filed revision before the High Court. By impugned judgment dated 04.08.2014, the High Court dismissed the revision.11. Challenging the order of the High Court, the appellants have filed this appeal by way of special leave before this Court.12. Heard Mr. Nikunj Dayal, learned counsel for the appellants and Mr. S. Gurukrishna Kumar, learned senior counsel for respondent No.1. Respondent No.2 refused to acknowledge the receipt of the service of notice issued to him under registered cover. This refusal on the part of respondent No.2 is deemed as proper service.13. Learned counsel for the appellants (tenant) while assailing the legality and correctness of the impugned order contended that the Rent Controlling Authority and the High Court erred in dismissing the appellants’ application for leave to contest the eviction application filed by respondent No.1. It was his submission that keeping in view the grounds raised by the appellants in the application, especially, three grounds, namely, first, relating to ownership of respondent No.1 over the suit shop, second, the existence of the relationship of landlord and tenant between them and, third, the availability of alternative suitable accommodation in the same building for accomplishing the need, prima facie, a case is made out to contest the respondent No,1’s application for eviction on merits. The Rent Controlling Authority and the High Court should have, therefore, granted leave to contest respondent No.1’s application on merits on these grounds.14. In reply, learned senior counsel for respondent No.1 supported the impugned order and contended that no case is made out to interfere in the impugned order which, according to him, is based on proper reasoning calling no interference in this appeal.15. Having heard the learned counsel for the parties and on perusal of the record of the case, we find force in the submissions of the learned counsel for the appellants.16. The short question, which arises for consideration in this appeal, is whether the Courts below were justified in rejecting the application filed by the appellants under Section 25B(4) of the Act for grant of leave to contest the eviction proceedings filed by respondent No.1 against the appellants under Section 14 (e) of the Act on merits?17. In our considered opinion, the application filed by the appellants under Section 25B(4) of the Act seeking leave to contest the eviction application of respondent No.1 should have been allowed to enable the appellants (tenant) to contest the eviction application on its merits. In other words, keeping in view the grounds raised by the appellants, we are of the opinion that a prima facie case was made out entitling the appellants to contest the application of respondent No.1 on merits. The grounds raised by the appellants, if accepted, could result in dismissal of respondent No.1’s eviction application thereby disentitling him to claim appellants’ eviction from the suit shop.18. We find that the ground relating to proof of ownership of respondent No.1 over the suit shop, which was based on the alleged adoption deed set up by him, for the first time, after 17 years coupled with the ground in relation to devolution of tenancy between the parties after the death of Smt. Ram Piari and lastly, the ground relating to bona fide need and availability of the alternative accommodation did disclose prima facie facts within the meaning of sub-sections 4 and 5 of Section 25B of the Act to contest the eviction application of respondent No.1 on merits.19. It is, inter alia, for the reasons, though prima facie, that, firstly, the appellants had not attorned to respondent No.1 as the owner of the suit shop and, in turn, his status as landlord; Secondly, there was no evidence to prove the existence of relationship of landlord and tenant between the parties; and Thirdly, specific averments were made by the appellants to show availability of alternative accommodation to satisfy the need of respondent No.1, if it really existed.20. The aforesaid grounds, in our view, were sufficient for granting leave to the appellants to contest the eviction application of respondent No.1 on merits.21. It is a settled principle of law that while considering the grant of leave to contest the eviction proceedings under the Rent Laws, the Authority/Court is not expected to examine the merits and demerits of the grounds raised in the application for grant of leave to contest and if the Authority/Court finds that the grounds raised prima facie disclose a defence which, if accepted, may result in non-suiting the landlord from claiming eviction, the tenant is entitled to obtain leave to contest the eviction proceedings on merits. In this case, we find that the appellants-tenant have made out such grounds and are, therefore, entitled for grant of leave to contest the eviction proceedings filed by respondent No.1 against them on merits.22. In the light of foregoing discussion, we are unable to concur with the reasoning and the conclusion arrived at by the Rent Controlling Authority and the High Court.23.
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1[ds]In our considered opinion, the application filed by the appellants under Section 25B(4) of the Act seeking leave to contest the eviction application of respondent No.1 should have been allowed to enable the appellants (tenant) to contest the eviction application on its merits. In other words, keeping in view the grounds raised by the appellants, we are of the opinion that a prima facie case was made out entitling the appellants to contest the application of respondent No.1 on merits. The grounds raised by the appellants, if accepted, could result in dismissal of respondenteviction application thereby disentitling him to claimeviction from the suitWe find that the ground relating to proof of ownership of respondent No.1 over the suit shop, which was based on the alleged adoption deed set up by him, for the first time, after 17 years coupled with the ground in relation to devolution of tenancy between the parties after the death of Smt. Ram Piari and lastly, the ground relating to bona fide need and availability of the alternative accommodation did disclose prima facie facts within the meaning of sub-sections 4 and 5 of Section 25B of the Act to contest the eviction application of respondent No.1 onIt is, inter alia, for the reasons, though prima facie, that, firstly, the appellants had not attorned to respondent No.1 as the owner of the suit shop and, in turn, his status as landlord; Secondly, there was no evidence to prove the existence of relationship of landlord and tenant between the parties; and Thirdly, specific averments were made by the appellants to show availability of alternative accommodation to satisfy the need of respondent No.1, if it reallyThe aforesaid grounds, in our view, were sufficient for granting leave to the appellants to contest the eviction application of respondent No.1 onIt is a settled principle of law that while considering the grant of leave to contest the eviction proceedings under the Rent Laws, the Authority/Court is not expected to examine the merits and demerits of the grounds raised in the application for grant of leave to contest and if the Authority/Court finds that the grounds raised prima facie disclose a defence which, if accepted, may result in non-suiting the landlord from claiming eviction, the tenant is entitled to obtain leave to contest the eviction proceedings on merits. In this case, we find that the appellants-tenant have made out such grounds and are, therefore, entitled for grant of leave to contest the eviction proceedings filed by respondent No.1 against them onIn the light of foregoing discussion, we are unable to concur with the reasoning and the conclusion arrived at by the Rent Controlling Authority and the High Court.
| 1 | 1,586 | 491 |
### 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:
No.1 over the suit shop, on the strength of adoption deed surfaced for the first time in these proceedings, the appellants in his leave to contest the application denied the ownership of respondent No.1 over the suit shop so also the relationship of landlord and tenant between them. The appellants also denied the bona fide need set up by respondent No.1 contending, inter alia, that alternative suitable accommodation in the building in question is available to respondent No.1 on other floors and hence the plea of bona fide need is not genuine. These were essentially the grounds on which the appellants sought leave to contest the application on merits.8. Respondent No.1 denied the averments made by the appellants in the application for leave to contest. The appellants then filed rejoinder and reiterated their grounds already taken in the application for leave to contest.9. By order dated 13.08.2012, the Additional Rent Controller dismissed the application filed by the appellants for leave to contest and passed an eviction order against the appellants from the suit shop.10. Felt aggrieved by the said order, the appellants filed revision before the High Court. By impugned judgment dated 04.08.2014, the High Court dismissed the revision.11. Challenging the order of the High Court, the appellants have filed this appeal by way of special leave before this Court.12. Heard Mr. Nikunj Dayal, learned counsel for the appellants and Mr. S. Gurukrishna Kumar, learned senior counsel for respondent No.1. Respondent No.2 refused to acknowledge the receipt of the service of notice issued to him under registered cover. This refusal on the part of respondent No.2 is deemed as proper service.13. Learned counsel for the appellants (tenant) while assailing the legality and correctness of the impugned order contended that the Rent Controlling Authority and the High Court erred in dismissing the appellants’ application for leave to contest the eviction application filed by respondent No.1. It was his submission that keeping in view the grounds raised by the appellants in the application, especially, three grounds, namely, first, relating to ownership of respondent No.1 over the suit shop, second, the existence of the relationship of landlord and tenant between them and, third, the availability of alternative suitable accommodation in the same building for accomplishing the need, prima facie, a case is made out to contest the respondent No,1’s application for eviction on merits. The Rent Controlling Authority and the High Court should have, therefore, granted leave to contest respondent No.1’s application on merits on these grounds.14. In reply, learned senior counsel for respondent No.1 supported the impugned order and contended that no case is made out to interfere in the impugned order which, according to him, is based on proper reasoning calling no interference in this appeal.15. Having heard the learned counsel for the parties and on perusal of the record of the case, we find force in the submissions of the learned counsel for the appellants.16. The short question, which arises for consideration in this appeal, is whether the Courts below were justified in rejecting the application filed by the appellants under Section 25B(4) of the Act for grant of leave to contest the eviction proceedings filed by respondent No.1 against the appellants under Section 14 (e) of the Act on merits?17. In our considered opinion, the application filed by the appellants under Section 25B(4) of the Act seeking leave to contest the eviction application of respondent No.1 should have been allowed to enable the appellants (tenant) to contest the eviction application on its merits. In other words, keeping in view the grounds raised by the appellants, we are of the opinion that a prima facie case was made out entitling the appellants to contest the application of respondent No.1 on merits. The grounds raised by the appellants, if accepted, could result in dismissal of respondent No.1’s eviction application thereby disentitling him to claim appellants’ eviction from the suit shop.18. We find that the ground relating to proof of ownership of respondent No.1 over the suit shop, which was based on the alleged adoption deed set up by him, for the first time, after 17 years coupled with the ground in relation to devolution of tenancy between the parties after the death of Smt. Ram Piari and lastly, the ground relating to bona fide need and availability of the alternative accommodation did disclose prima facie facts within the meaning of sub-sections 4 and 5 of Section 25B of the Act to contest the eviction application of respondent No.1 on merits.19. It is, inter alia, for the reasons, though prima facie, that, firstly, the appellants had not attorned to respondent No.1 as the owner of the suit shop and, in turn, his status as landlord; Secondly, there was no evidence to prove the existence of relationship of landlord and tenant between the parties; and Thirdly, specific averments were made by the appellants to show availability of alternative accommodation to satisfy the need of respondent No.1, if it really existed.20. The aforesaid grounds, in our view, were sufficient for granting leave to the appellants to contest the eviction application of respondent No.1 on merits.21. It is a settled principle of law that while considering the grant of leave to contest the eviction proceedings under the Rent Laws, the Authority/Court is not expected to examine the merits and demerits of the grounds raised in the application for grant of leave to contest and if the Authority/Court finds that the grounds raised prima facie disclose a defence which, if accepted, may result in non-suiting the landlord from claiming eviction, the tenant is entitled to obtain leave to contest the eviction proceedings on merits. In this case, we find that the appellants-tenant have made out such grounds and are, therefore, entitled for grant of leave to contest the eviction proceedings filed by respondent No.1 against them on merits.22. In the light of foregoing discussion, we are unable to concur with the reasoning and the conclusion arrived at by the Rent Controlling Authority and the High Court.23.
### Response:
1
### Explanation:
In our considered opinion, the application filed by the appellants under Section 25B(4) of the Act seeking leave to contest the eviction application of respondent No.1 should have been allowed to enable the appellants (tenant) to contest the eviction application on its merits. In other words, keeping in view the grounds raised by the appellants, we are of the opinion that a prima facie case was made out entitling the appellants to contest the application of respondent No.1 on merits. The grounds raised by the appellants, if accepted, could result in dismissal of respondenteviction application thereby disentitling him to claimeviction from the suitWe find that the ground relating to proof of ownership of respondent No.1 over the suit shop, which was based on the alleged adoption deed set up by him, for the first time, after 17 years coupled with the ground in relation to devolution of tenancy between the parties after the death of Smt. Ram Piari and lastly, the ground relating to bona fide need and availability of the alternative accommodation did disclose prima facie facts within the meaning of sub-sections 4 and 5 of Section 25B of the Act to contest the eviction application of respondent No.1 onIt is, inter alia, for the reasons, though prima facie, that, firstly, the appellants had not attorned to respondent No.1 as the owner of the suit shop and, in turn, his status as landlord; Secondly, there was no evidence to prove the existence of relationship of landlord and tenant between the parties; and Thirdly, specific averments were made by the appellants to show availability of alternative accommodation to satisfy the need of respondent No.1, if it reallyThe aforesaid grounds, in our view, were sufficient for granting leave to the appellants to contest the eviction application of respondent No.1 onIt is a settled principle of law that while considering the grant of leave to contest the eviction proceedings under the Rent Laws, the Authority/Court is not expected to examine the merits and demerits of the grounds raised in the application for grant of leave to contest and if the Authority/Court finds that the grounds raised prima facie disclose a defence which, if accepted, may result in non-suiting the landlord from claiming eviction, the tenant is entitled to obtain leave to contest the eviction proceedings on merits. In this case, we find that the appellants-tenant have made out such grounds and are, therefore, entitled for grant of leave to contest the eviction proceedings filed by respondent No.1 against them onIn the light of foregoing discussion, we are unable to concur with the reasoning and the conclusion arrived at by the Rent Controlling Authority and the High Court.
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Inder Lal Vs. Lal Singh
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character and it may also be suggested that it nevertheless affects his private character. Therefore, it is clear that in dealing with corrupt practices alleged under S. 123 (4) where we are concerned with border-line cases, we will have to draw a working line to distinguish private character from public character and it may also have to be borne in mind that in some cases, the false statement may affect both the private and the public character as well. 14. In the present case, we are satisfied that the allegation made in the pamphlet that respondent No. 2 is a purchaser of the opponents of the Congress by means of money clearly attracts the provisions of S. 123 (4). In plain terms, the statement amounts to an allegation that respondent No. 2 buys by offering bribes the votes of the opponents of the Congress. Bribery is itself a corrupt practice and if it is said against a candidate that he practices the corrupt practice of buying the votes of the opponents of the Congress by means of bribery, that clearly and unequivocally affects his private character. Offering a bribe in an election introduces an element of moral turpitude and it cannot be denied that a person who offers bribe loses reputation as an individual in the eyes of the public. The statement alleges that the bribes are offered by respondent No. 2 for the purpose of election and in that sense it may be that it is his public character which is falsely criticised. But, in our opinion, it would be idle to contend that it is a false statement only against the public character of respondent No. 2.Having regard to the moral turpitude involved in the offering of the bribe, the statement in question undoubtedly affects his private character as well. Unfortunately, in dealing with this point, the High Court does not appear to have considered this statement at all. It has dealt with this problem in very general terms. It has observed that the impugned statements all refer to the Maharawal as one of those various persons of his class who as a body appear to be responsible in the opinion of the writer for the political mischief?s referred to in the statements, and that a general reading of the document shows that the attack upon him is a part of a bigger organisation of individuals who do not appear to be as the writer thinks, well inclined towards the progress of the country. It is perfectly true that in dealing with the contention that the false statement contained in the pamphlet amounts to a corrupt practice under S. 123(4), it is necessary to read the document as a whole before determining the effect of any particular objectionable statement. But reading the document as a whole, we see no justification whatever for the view expressed by the High Court that the criticism made in the document is directed against a body of persons and not against respondent No. 2 himself. The failure of the High Court to deal with the several specific statements on which the argument of the appellant is based, has introduced a serious infirmity in its final conclusion. If only the High Court had considered the allegation that respondent No. 2 was the purchaser of opponents of the Congress by means of money, we are inclined to think that the High Court would not have brushed aside the appellants case with the general observations which it has made in its judgment. We are, therefore, satisfied that the appellant is right in contending that the false statement of fact to which we have just referred constitutes a corrupt practice under S. 123(4) of the Act. In that view of the matter, it is unnecessary to consider whether the other impugned statements of fact also attract the provisions of S. 123 (4). 15. In the result, we must reverse the finding of the High Court that publication of the impugned pamphlets does not constitute, a corrupt practice under S. 123(4). The result of this conclusion inevitably is that the election of respondent No. 1 must be declared to be invalid because there is no doubt that the corrupt practice proved in this case falls under S. 101(b) and is outside the purview of S. 100(2). 16. That lakes us to the question as to whether respondent No. 2 can be declared to have been validly elected at the election in question. This question will have to be decided in the light of provisions of S. 101(b) of the Act. The said section provides, inter alia, that"if any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that any other candidate has been duly elected and the Tribunal is of opinion that but for the votes obtained by such returned candidate by corrupt practices such other candidate would have obtained a majority of the valid votes, the Tribunal shall after declaring the election of the returned candidate to be void declare such other candidate to have been duly elected." This question has not been considered by the High Court and it cannot be decided unless the relevant facts are examined on the merits and that normally would mean our remanding the case to the High Court for the decision of the point in accordance with law. We do not however, propose to adopt such a course in view of the fact that it would be futile to give any further lease of life to this petition. The election which is challenged took place in 1957 and in fact we are now on the verge of fresh elections which would take place this month. That is why we think it would serve no purpose in sending the matter back for the decision of the question as to whether on the evidence adduced in the case, respondent No. 2 can be declared to have been validly elected.
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1[ds]It would thus be seen that the publication in question must be by a candidate or his agent or by any other person; the said publication should be in regard to a statement of fact which is false and which he either believes to be false or does not believe to be true; that it must have relation to the personal character or conduct of the candidate, or should have relation to the candidature, withdrawal or retirement from contest of any candidate and that it should be a statement reasonably calculated to prejudice the prospects of that candidates election. All the requirements of this sub-section, except one, are held to have been satisfied by the High Court. The only requirement of the sub-section which has not been satisfied according to the High Court is that the statement has no relation to the personal character or conduct of respondent No. 2. Mr. Sastri contends that this finding of the High Court is erroneous in law11. It would be noticed that in prescribing the requirement that the false statement should have relation to the personal character of the candidate, a distinction is intended to be drawn between the personal character of the candidate and his public or political character. The provision postulates that if a false statement is made in regard to the public or political character of the candidate, it would not constitute a corrupt practice even if it is likely to prejudice the prospects of that candidates election. This assumption is presumably based on the theory that the electorate being politically educated and mature, would not be deceived by a false criticism against the public or political character of any candidate. The public and political character of a candidate is open to public view and public criticism and even if any false statements are made about the political views of a candidate or his public conduct or character, the electorate would be able to judge the allegations on the merits and may not be misled by any false allegations in that behalf. It is on this theory that false statements of fact affecting the public or political character of a candidate are not brought within the mischief of S. 123(4).In order that the elections should be free, it is necessary that the electorate should be educated on political issues in a fearless manner and so, the Legislature thought that full and ample scope should be left for free and fearless criticism by candidates against the public and political character of their opponents12. But the position with regard to the private or personal character of the candidate is very different. Circulation of false statements about the private or personal character of the candidate during the period preceding elections is likely to work against the freedom of election itself inasmuch as the effect created by false statements cannot be met by denials in proper time and so the Constituency has to be protected against the circulation of such false statements which are likely to affect the voting of the electors. That is why it is for the protection of the constituency against acts which would be fatal to the freedom of election that the statute provides for the inclusion of the circulation of false statements concerning the private character of a candidate amongst corrupt practices. Dissemination of false statements about the personal character of a candidate thus constitutes a corrupt practice13. Though it is clear that the statute wants to make a broad distinction between public and political character on the one hand and private character on the other, it is obvious that a sharp and clear-cut dividing line cannot be drawn to distinguish the one from the other. In discussing the distinction between the private character and the public character, sometimes reference is made to the "man beneath the politician" and it is said that if a statement of fact affects the man beneath the politician it touches private character and if it affects the politician, it does not touch his private character. There may be some false statements of fact which clearly affect the private character of the candidate. If, for instance, it is said that the candidate is a cheat or murderer there can be no doubt that the statement is in regard to his private character and conduct and so if the statement is shown to be false, it would undoubtedly be a corrupt practice. Similarly, if the economic policy of the party to which the candidate belongs or its political idealogy is falsely criticised and in strong words it is suggested that the said policy and idealogy would cause the ruin of the country, that clearly would be criticism, though false, against the public character of the candidate and his political party and as such, it would be outside the purview of the statute. But there may be cases on the borderline where the false statement may affect both the politician and the man beneath the politician and it is precisely in dealing with cases on the border-line that difficulties are experienced in determining whether the impugued false statement constitutes a corrupt practice or not. If, for instance, it is said that in his public life, the candidate has utilised his position for the selfish purpose of securing jobs for his relations, it may be argued that it is criticism against the candidate in his public character and it may also be suggested that it nevertheless affects his private character. Therefore, it is clear that in dealing with corrupt practices alleged under S. 123 (4) where we are concerned with border-line cases, we will have to draw a working line to distinguish private character from public character and it may also have to be borne in mind that in some cases, the false statement may affect both the private and the public character as well14. In the present case, we are satisfied that the allegation made in the pamphlet that respondent No. 2 is a purchaser of the opponents of the Congress by means of money clearly attracts the provisions of S. 123 (4). In plain terms, the statement amounts to an allegation that respondent No. 2 buys by offering bribes the votes of the opponents of the Congress. Bribery is itself a corrupt practice and if it is said against a candidate that he practices the corrupt practice of buying the votes of the opponents of the Congress by means of bribery, that clearly and unequivocally affects his private character. Offering a bribe in an election introduces an element of moral turpitude and it cannot be denied that a person who offers bribe loses reputation as an individual in the eyes of the public. The statement alleges that the bribes are offered by respondent No. 2 for the purpose of election and in that sense it may be that it is his public character which is falsely criticised. But, in our opinion, it would be idle to contend that it is a false statement only against the public character of respondent No. 2.Having regard to the moral turpitude involved in the offering of the bribe, the statement in question undoubtedly affects his private character as well. Unfortunately, in dealing with this point, the High Court does not appear to have considered this statement at all. It has dealt with this problem in very general terms. It has observed that the impugned statements all refer to the Maharawal as one of those various persons of his class who as a body appear to be responsible in the opinion of the writer for the political mischief?s referred to in the statements, and that a general reading of the document shows that the attack upon him is a part of a bigger organisation of individuals who do not appear to be as the writer thinks, well inclined towards the progress of the country. It is perfectly true that in dealing with the contention that the false statement contained in the pamphlet amounts to a corrupt practice under S. 123(4), it is necessary to read the document as a whole before determining the effect of any particular objectionable statement. But reading the document as a whole, we see no justification whatever for the view expressed by the High Court that the criticism made in the document is directed against a body of persons and not against respondent No. 2 himself. The failure of the High Court to deal with the several specific statements on which the argument of the appellant is based, has introduced a serious infirmity in its final conclusion. If only the High Court had considered the allegation that respondent No. 2 was the purchaser of opponents of the Congress by means of money, we are inclined to think that the High Court would not have brushed aside the appellants case with the general observations which it has made in its judgment. We are, therefore, satisfied that the appellant is right in contending that the false statement of fact to which we have just referred constitutes a corrupt practice under S. 123(4) of the Act. In that view of the matter, it is unnecessary to consider whether the other impugned statements of fact also attract the provisions of S. 123 (4)15. In the result, we must reverse the finding of the High Court that publication of the impugned pamphlets does not constitute, a corrupt practice under S. 123(4). The result of this conclusion inevitably is that the election of respondent No. 1 must be declared to be invalid because there is no doubt that the corrupt practice proved in this case falls under S. 101(b) and is outside the purview of S. 100(2)This question has not been considered by the High Court and it cannot be decided unless the relevant facts are examined on the merits and that normally would mean our remanding the case to the High Court for the decision of the point in accordance with law. We do not however, propose to adopt such a course in view of the fact that it would be futile to give any further lease of life to this petition. The election which is challenged took place in 1957 and in fact we are now on the verge of fresh elections which would take place this month. That is why we think it would serve no purpose in sending the matter back for the decision of the question as to whether on the evidence adduced in the case, respondent No. 2 can be declared to have been validly elected.
| 1 | 4,026 | 1,900 |
### 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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character and it may also be suggested that it nevertheless affects his private character. Therefore, it is clear that in dealing with corrupt practices alleged under S. 123 (4) where we are concerned with border-line cases, we will have to draw a working line to distinguish private character from public character and it may also have to be borne in mind that in some cases, the false statement may affect both the private and the public character as well. 14. In the present case, we are satisfied that the allegation made in the pamphlet that respondent No. 2 is a purchaser of the opponents of the Congress by means of money clearly attracts the provisions of S. 123 (4). In plain terms, the statement amounts to an allegation that respondent No. 2 buys by offering bribes the votes of the opponents of the Congress. Bribery is itself a corrupt practice and if it is said against a candidate that he practices the corrupt practice of buying the votes of the opponents of the Congress by means of bribery, that clearly and unequivocally affects his private character. Offering a bribe in an election introduces an element of moral turpitude and it cannot be denied that a person who offers bribe loses reputation as an individual in the eyes of the public. The statement alleges that the bribes are offered by respondent No. 2 for the purpose of election and in that sense it may be that it is his public character which is falsely criticised. But, in our opinion, it would be idle to contend that it is a false statement only against the public character of respondent No. 2.Having regard to the moral turpitude involved in the offering of the bribe, the statement in question undoubtedly affects his private character as well. Unfortunately, in dealing with this point, the High Court does not appear to have considered this statement at all. It has dealt with this problem in very general terms. It has observed that the impugned statements all refer to the Maharawal as one of those various persons of his class who as a body appear to be responsible in the opinion of the writer for the political mischief?s referred to in the statements, and that a general reading of the document shows that the attack upon him is a part of a bigger organisation of individuals who do not appear to be as the writer thinks, well inclined towards the progress of the country. It is perfectly true that in dealing with the contention that the false statement contained in the pamphlet amounts to a corrupt practice under S. 123(4), it is necessary to read the document as a whole before determining the effect of any particular objectionable statement. But reading the document as a whole, we see no justification whatever for the view expressed by the High Court that the criticism made in the document is directed against a body of persons and not against respondent No. 2 himself. The failure of the High Court to deal with the several specific statements on which the argument of the appellant is based, has introduced a serious infirmity in its final conclusion. If only the High Court had considered the allegation that respondent No. 2 was the purchaser of opponents of the Congress by means of money, we are inclined to think that the High Court would not have brushed aside the appellants case with the general observations which it has made in its judgment. We are, therefore, satisfied that the appellant is right in contending that the false statement of fact to which we have just referred constitutes a corrupt practice under S. 123(4) of the Act. In that view of the matter, it is unnecessary to consider whether the other impugned statements of fact also attract the provisions of S. 123 (4). 15. In the result, we must reverse the finding of the High Court that publication of the impugned pamphlets does not constitute, a corrupt practice under S. 123(4). The result of this conclusion inevitably is that the election of respondent No. 1 must be declared to be invalid because there is no doubt that the corrupt practice proved in this case falls under S. 101(b) and is outside the purview of S. 100(2). 16. That lakes us to the question as to whether respondent No. 2 can be declared to have been validly elected at the election in question. This question will have to be decided in the light of provisions of S. 101(b) of the Act. The said section provides, inter alia, that"if any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that any other candidate has been duly elected and the Tribunal is of opinion that but for the votes obtained by such returned candidate by corrupt practices such other candidate would have obtained a majority of the valid votes, the Tribunal shall after declaring the election of the returned candidate to be void declare such other candidate to have been duly elected." This question has not been considered by the High Court and it cannot be decided unless the relevant facts are examined on the merits and that normally would mean our remanding the case to the High Court for the decision of the point in accordance with law. We do not however, propose to adopt such a course in view of the fact that it would be futile to give any further lease of life to this petition. The election which is challenged took place in 1957 and in fact we are now on the verge of fresh elections which would take place this month. That is why we think it would serve no purpose in sending the matter back for the decision of the question as to whether on the evidence adduced in the case, respondent No. 2 can be declared to have been validly elected.
### Response:
1
### Explanation:
words it is suggested that the said policy and idealogy would cause the ruin of the country, that clearly would be criticism, though false, against the public character of the candidate and his political party and as such, it would be outside the purview of the statute. But there may be cases on the borderline where the false statement may affect both the politician and the man beneath the politician and it is precisely in dealing with cases on the border-line that difficulties are experienced in determining whether the impugued false statement constitutes a corrupt practice or not. If, for instance, it is said that in his public life, the candidate has utilised his position for the selfish purpose of securing jobs for his relations, it may be argued that it is criticism against the candidate in his public character and it may also be suggested that it nevertheless affects his private character. Therefore, it is clear that in dealing with corrupt practices alleged under S. 123 (4) where we are concerned with border-line cases, we will have to draw a working line to distinguish private character from public character and it may also have to be borne in mind that in some cases, the false statement may affect both the private and the public character as well14. In the present case, we are satisfied that the allegation made in the pamphlet that respondent No. 2 is a purchaser of the opponents of the Congress by means of money clearly attracts the provisions of S. 123 (4). In plain terms, the statement amounts to an allegation that respondent No. 2 buys by offering bribes the votes of the opponents of the Congress. Bribery is itself a corrupt practice and if it is said against a candidate that he practices the corrupt practice of buying the votes of the opponents of the Congress by means of bribery, that clearly and unequivocally affects his private character. Offering a bribe in an election introduces an element of moral turpitude and it cannot be denied that a person who offers bribe loses reputation as an individual in the eyes of the public. The statement alleges that the bribes are offered by respondent No. 2 for the purpose of election and in that sense it may be that it is his public character which is falsely criticised. But, in our opinion, it would be idle to contend that it is a false statement only against the public character of respondent No. 2.Having regard to the moral turpitude involved in the offering of the bribe, the statement in question undoubtedly affects his private character as well. Unfortunately, in dealing with this point, the High Court does not appear to have considered this statement at all. It has dealt with this problem in very general terms. It has observed that the impugned statements all refer to the Maharawal as one of those various persons of his class who as a body appear to be responsible in the opinion of the writer for the political mischief?s referred to in the statements, and that a general reading of the document shows that the attack upon him is a part of a bigger organisation of individuals who do not appear to be as the writer thinks, well inclined towards the progress of the country. It is perfectly true that in dealing with the contention that the false statement contained in the pamphlet amounts to a corrupt practice under S. 123(4), it is necessary to read the document as a whole before determining the effect of any particular objectionable statement. But reading the document as a whole, we see no justification whatever for the view expressed by the High Court that the criticism made in the document is directed against a body of persons and not against respondent No. 2 himself. The failure of the High Court to deal with the several specific statements on which the argument of the appellant is based, has introduced a serious infirmity in its final conclusion. If only the High Court had considered the allegation that respondent No. 2 was the purchaser of opponents of the Congress by means of money, we are inclined to think that the High Court would not have brushed aside the appellants case with the general observations which it has made in its judgment. We are, therefore, satisfied that the appellant is right in contending that the false statement of fact to which we have just referred constitutes a corrupt practice under S. 123(4) of the Act. In that view of the matter, it is unnecessary to consider whether the other impugned statements of fact also attract the provisions of S. 123 (4)15. In the result, we must reverse the finding of the High Court that publication of the impugned pamphlets does not constitute, a corrupt practice under S. 123(4). The result of this conclusion inevitably is that the election of respondent No. 1 must be declared to be invalid because there is no doubt that the corrupt practice proved in this case falls under S. 101(b) and is outside the purview of S. 100(2)This question has not been considered by the High Court and it cannot be decided unless the relevant facts are examined on the merits and that normally would mean our remanding the case to the High Court for the decision of the point in accordance with law. We do not however, propose to adopt such a course in view of the fact that it would be futile to give any further lease of life to this petition. The election which is challenged took place in 1957 and in fact we are now on the verge of fresh elections which would take place this month. That is why we think it would serve no purpose in sending the matter back for the decision of the question as to whether on the evidence adduced in the case, respondent No. 2 can be declared to have been validly elected.
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Shantha Sinha & Another Vs. Union of India & Another
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1. We have heard Mr. Shyam Divan, learned senior counsel for the petitioner assisted by Mr. Vipin Nair, Mr. P.B. Suresh, Mr. Udayaditya Banerjee and Mr. Mukul Rohatgi, and learned Attorney General assisted by Mr. Zoheb Hossain, Mr. Arghya Sengupta, Ritesh Kumar and Ms. Ranjeeta Rohatgi, learned counsel for the respondent-Union of India.2. Learned Attorney General has raised preliminary objections for consideration of interim reliefs. Firstly, that similar reliefs were claimed in another Writ Petition No.797 of 2016 which were not granted though pressed and that the petitioner therein subsequently filed interim application on 11.03.2017 but did not take steps to get the same listed before the Court for reasons best known to him. He further submits that the nature of interim reliefs sought, ought to be considered by the Constitution Bench as was the case while considering the application for modification filed by Union of India in W.P. (C) No.494/2012, vide order dated 15.10.2015. Additionally, he submits that the Division Bench on 09.05.2017 issued rule nisi and had observed that this writ petition be tagged along with W.P. (Civil) No. 494/2012, which is already slated to be heard before the Constitution Bench.3. During the course of hearing our attention was invited to the fact that the application filed in other pending Writ Petition (C) No.797/2016, involve similar issues as will be considered in the present application for interim relief. If that is so, in our considered opinion it is appropriate that all the applications involving overlapping issues are heard together analogously to avoid multiplicity of hearing on the same subject matter.
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1[ds]3. During the course of hearing our attention was invited to the fact that the application filed in other pending Writ Petition (C) No.797/2016, involve similar issues as will be considered in the present application for interim relief. If that is so, in our considered opinion it is appropriate that all the applications involving overlapping issues are heard together analogously to avoid multiplicity of hearing on the same subject matter.
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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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1. We have heard Mr. Shyam Divan, learned senior counsel for the petitioner assisted by Mr. Vipin Nair, Mr. P.B. Suresh, Mr. Udayaditya Banerjee and Mr. Mukul Rohatgi, and learned Attorney General assisted by Mr. Zoheb Hossain, Mr. Arghya Sengupta, Ritesh Kumar and Ms. Ranjeeta Rohatgi, learned counsel for the respondent-Union of India.2. Learned Attorney General has raised preliminary objections for consideration of interim reliefs. Firstly, that similar reliefs were claimed in another Writ Petition No.797 of 2016 which were not granted though pressed and that the petitioner therein subsequently filed interim application on 11.03.2017 but did not take steps to get the same listed before the Court for reasons best known to him. He further submits that the nature of interim reliefs sought, ought to be considered by the Constitution Bench as was the case while considering the application for modification filed by Union of India in W.P. (C) No.494/2012, vide order dated 15.10.2015. Additionally, he submits that the Division Bench on 09.05.2017 issued rule nisi and had observed that this writ petition be tagged along with W.P. (Civil) No. 494/2012, which is already slated to be heard before the Constitution Bench.3. During the course of hearing our attention was invited to the fact that the application filed in other pending Writ Petition (C) No.797/2016, involve similar issues as will be considered in the present application for interim relief. If that is so, in our considered opinion it is appropriate that all the applications involving overlapping issues are heard together analogously to avoid multiplicity of hearing on the same subject matter.
### Response:
1
### Explanation:
3. During the course of hearing our attention was invited to the fact that the application filed in other pending Writ Petition (C) No.797/2016, involve similar issues as will be considered in the present application for interim relief. If that is so, in our considered opinion it is appropriate that all the applications involving overlapping issues are heard together analogously to avoid multiplicity of hearing on the same subject matter.
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Ramesh B. Desai Vs. Bipin Vadilal Mehta
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or mistake. (1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act, (a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or (b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or (c) the suit or application is for relief from the consequences of a mistake; or (d) ....................................... (omitted as not relevant)the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production: Provided that .......................................................... .......................................... omitted as not relevant) 24. In our opinion, in view of the facts pleaded in the Company Petition, the case is covered by Section 17(1)(a) of the Limitation Act and not by Section 17(1)(b) as the petitioners are not claiming any right or title over the shares of the Company, which according to them were purchased out of the funds of the Company. Section 17(1)(b) will apply when the plaintiff or applicant is claiming any kind of right or title to any moveable or immoveable property etc. Their simple case is that in view of the fact that the funds of the Company were utilized for purchase of shares by Bipinbhai, which were then recorded in his name, the whole transaction was in violation of Section 77 of the Companies Act, and consequently the register of the Company required to be rectified in accordance with Section 155 of the Companies Act. It was also pleaded that the petitioners had got no knowledge of the fraud played by the respondents of the Company Petition whereby the funds of the Company were utilized for purchase of shares and they came to know about it in May, 1987 through the criminal complaint. In view of the pleadings as aforesaid, it is Section 17(1)(a) of the Limitation Act which would govern the situation and not Section 17(1)(b) of the Limitation Act. 25. The decisions cited by Mr. Chagla have been rendered on Section 18 of the Limitation Act, 1908 which reads as under: - S.18. Effect of Fraud : Where any person having a right to institute a suit or make an application has, by means of fraud, been kept from the knowledge of such right or of the title on which it is founded, or where any document necessary to establish such right has been fraudulently concealed from him, the time limited for instituting a suit or making an application (a) against the person guilty of the fraud or accessory thereto, or (b) against any person claiming through him otherwise than in good faith and for a valuable consideration, shall be computed from the time when the fraud first became known to the person injuriously affected thereby, or, in the case of the concealed document, when he first had the means of producing it or compelling its production. 26. The corresponding provision of Section 18 of the Limitation Act, 1908 is Section 17 of the Limitation Act, 1963. The Statement of Objects and Reasons for amending Section 18 of the old Limitation Act read thus : - OBJECTS AND REASONS Clause 16: - Section 18 of the existing Act has been re-cast on the lines of Section 26 of the Limitation Act, 1939, of the united Kingdom so as to include actions based on fraud and also for relief founded on mistake. The clause also seeks to afford suitable protection to purchasers for valuable consideration in all such cases. Sub-clause (2) incorporates the principle contained in the proviso to Section 48 of the Code of Civil Procedure, 1908, which now finds a place in this Bill (see Art. 135). The benefit is, however, made available only if the application for extension is made within one year from the date of discovery of the fraud or cessation of force. Clause (a) of sub-section (1) of Section 17 of Limitation Act, 1963 is same as clause (a) of Section 26 of the English Act. There was no corresponding provision like clause (a) of sub-section (1) of Section 17 in Section 18 of the old Limitation Act and this provision has been introduced for the first time as a result of the amendment. All the decisions cited by Mr. Chagla have been rendered on Section 18 of Limitation Act, 1908. In view of the amendment incorporated in the Limitation Act, 1963 and specially the language in which Section 17 is cast now, they can have no application to the facts of the present case 27. Mr. Soli Sorabjee has also submitted that the continuance of the name of Bipinbhai in the register of the Company was a continuing wrong and, therefore, the period of limitation would begin to run at every moment of time during which the wrong name of Bipinbhai continues to remain in the register. Learned counsel has submitted that in such a situation the principles enshrined in Section 22of the Limitation Act will apply and the Company Petition cannot be held to be barred by limitation and the view to the contrary taken by the High Court is erroneous in law. Since we have held above that the Company Petition could not be dismissed on a preliminary issue, namely, as being barred by limitation as the petitioners had not been given opportunity to lead evidence and the finding of the High Court has been reversed on that point, we do not consider it appropriate to examine the aforesaid contention on merits. However, as the High Court has to hear the Company Petition again, the findings recorded by the High Court on the point of continuing wrong and condonation of delay are set side.
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1[ds]19. Undoubtedly, Order VI Rule 4 CPC requires that complete particulars of fraud shall be stated in the pleadings. The particulars of alleged fraud, which are required to be stated in the plaint, will depend upon the facts of each particular case and no abstract principle can be laid down in this regard. Where some transaction of money takes place to which A, B and C are parties and payment is made by cheques, in normal circumstances a third party X may not get knowledge of the said transaction unless he is informed about it by someone who has knowledge of the transaction or he gets an opportunity to see the accounts of the concerned parties in the Bank. In such a case an assertion by X that he got no knowledge of the transaction when it took place and that he came to know about it subsequently through some proceedings in court cannot be said to be insufficient pleading for the purpose of Order VI Rule 4 CPC. In such a case X can only plead that he got no knowledge of the transaction and nothing more. Having regard to the circumstances of the case, we are of the opinion that the High Court was in error in holding that there was no proper pleading of fraud20. The learned Company Judge has referred to the affidavit in reply filed by R.T. Doshi opposing the admission of the Company Petition and on the basis of the said affidavit has laid great emphasis on the fact that father Vadilal Lallubhai Mehta was present all along with the appellant No. 1 Ramesh B. Desai at all material times and that things were done in the presence of everyone, viz., two sons of Vadilal Lallubhai Mehta, namely, Bipinbhai and Suhasbhai. Emphasis has also been laid on the fact that the last cheque dated 25.11.1982 given by the Company to M/s. Santosh Starch Products was signed by the petitioner No. 1 Ramesh B. Desai himself. These are all questions of fact, findings on which could be recorded only after the parties had been given opportunity to adduce evidence. The mere fact that one cheque for Rs.5 lacs was signed by Ramesh B. Desai does not lead to the only inference that he got knowledge of the entire transaction relating to payment of Rs.20 lacs by the Company to M/s. Santosh Starch Products and the payment of the said amount on the same day by M/s. Santosh Starch Products to Bipinbhai and his family members. The learned Company Judge and the Division Bench in appeal have referred to these facts and have recorded a finding that the petitioners had knowledge of the entire transaction and the Company Petition was barred by limitation. It is important to point out that apart from Ramesh B. Desai there are 8 other shareholders who had filed the Company Petition. There is not even a slightest inkling in the impugned judgments of the High Court that the other 8 petitioners had acquired knowledge of the transaction much earlier. In our opinion the approach adopted by the High Court is clearly illegal as no finding on the point of knowledge could have been recorded until the parties had been given opportunity to lead evidence and in such circumstances dismissal of the Company Petition at a preliminary stage on the finding that it was barred by limitation is clearly erroneous in law21. Mr. Iqbal Chagla, learned counsel for the respondents, has submitted that the full particulars of fraud had not been given in the Company Petition and as such there was no compliance of Order VI Rule 4 CPC in the Company Petition and the learned Company Judge has rightly dismissed the same. In support of this submission he has placed reliance on Bishundeo Narain and another vs. Seogeni Rai and others AIR 1951 SC 280 wherein it was held that in case of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice however strong the language in which they are couched may be. Reliance has also been placed on Bijendra Nath Srivastava vs. Mayank Srivastava and others (1994) 6 SCC 117 and paragraphs 208 and 228 of the report in Sangramsinh P. Gaekwad and others vs. Shantadevi P. Gaekwad and others (2005) 11 SCC 314 , where the same principle has been reiterated.We have already considered this aspect of the matter and in our opinion in the acts and circumstances of the case the plea raised in the Company Petition cannot be held to be wanting in compliance of Order VI Rule 4 CPC24. In our opinion, in view of the facts pleaded in the Company Petition, the case is covered by Section 17(1)(a) of the Limitation Act and not by Section 17(1)(b) as the petitioners are not claiming any right or title over the shares of the Company, which according to them were purchased out of the funds of the Company. Section 17(1)(b) will apply when the plaintiff or applicant is claiming any kind of right or title to any moveable or immoveable property etc. Their simple case is that in view of the fact that the funds of the Company were utilized for purchase of shares by Bipinbhai, which were then recorded in his name, the whole transaction was in violation of Section 77 of the Companies Act, and consequently the register of the Company required to be rectified in accordance with Section 155 of the Companies Act. It was also pleaded that the petitioners had got no knowledge of the fraud played by the respondents of the Company Petition whereby the funds of the Company were utilized for purchase of shares and they came to know about it in May, 1987 through the criminal complaint. In view of the pleadings as aforesaid, it is Section 17(1)(a) of the Limitation Act which would govern the situation and not Section 17(1)(b) of the Limitation Act27. Mr. Soli Sorabjee has also submitted that the continuance of the name of Bipinbhai in the register of the Company was a continuing wrong and, therefore, the period of limitation would begin to run at every moment of time during which the wrong name of Bipinbhai continues to remain in the register. Learned counsel has submitted that in such a situation the principles enshrined in Section 22of the Limitation Act will apply and the Company Petition cannot be held to be barred by limitation and the view to the contrary taken by the High Court is erroneous inSince we have held above that the Company Petition could not be dismissed on a preliminary issue, namely, as being barred by limitation as the petitioners had not been given opportunity to lead evidence and the finding of the High Court has been reversed on that point, we do not consider it appropriate to examine the aforesaid contention on merits. However, as the High Court has to hear the Company Petition again, the findings recorded by the High Court on the point of continuing wrong and condonation of delay are set side.
| 1 | 9,783 | 1,324 |
### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
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or mistake. (1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act, (a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or (b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or (c) the suit or application is for relief from the consequences of a mistake; or (d) ....................................... (omitted as not relevant)the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production: Provided that .......................................................... .......................................... omitted as not relevant) 24. In our opinion, in view of the facts pleaded in the Company Petition, the case is covered by Section 17(1)(a) of the Limitation Act and not by Section 17(1)(b) as the petitioners are not claiming any right or title over the shares of the Company, which according to them were purchased out of the funds of the Company. Section 17(1)(b) will apply when the plaintiff or applicant is claiming any kind of right or title to any moveable or immoveable property etc. Their simple case is that in view of the fact that the funds of the Company were utilized for purchase of shares by Bipinbhai, which were then recorded in his name, the whole transaction was in violation of Section 77 of the Companies Act, and consequently the register of the Company required to be rectified in accordance with Section 155 of the Companies Act. It was also pleaded that the petitioners had got no knowledge of the fraud played by the respondents of the Company Petition whereby the funds of the Company were utilized for purchase of shares and they came to know about it in May, 1987 through the criminal complaint. In view of the pleadings as aforesaid, it is Section 17(1)(a) of the Limitation Act which would govern the situation and not Section 17(1)(b) of the Limitation Act. 25. The decisions cited by Mr. Chagla have been rendered on Section 18 of the Limitation Act, 1908 which reads as under: - S.18. Effect of Fraud : Where any person having a right to institute a suit or make an application has, by means of fraud, been kept from the knowledge of such right or of the title on which it is founded, or where any document necessary to establish such right has been fraudulently concealed from him, the time limited for instituting a suit or making an application (a) against the person guilty of the fraud or accessory thereto, or (b) against any person claiming through him otherwise than in good faith and for a valuable consideration, shall be computed from the time when the fraud first became known to the person injuriously affected thereby, or, in the case of the concealed document, when he first had the means of producing it or compelling its production. 26. The corresponding provision of Section 18 of the Limitation Act, 1908 is Section 17 of the Limitation Act, 1963. The Statement of Objects and Reasons for amending Section 18 of the old Limitation Act read thus : - OBJECTS AND REASONS Clause 16: - Section 18 of the existing Act has been re-cast on the lines of Section 26 of the Limitation Act, 1939, of the united Kingdom so as to include actions based on fraud and also for relief founded on mistake. The clause also seeks to afford suitable protection to purchasers for valuable consideration in all such cases. Sub-clause (2) incorporates the principle contained in the proviso to Section 48 of the Code of Civil Procedure, 1908, which now finds a place in this Bill (see Art. 135). The benefit is, however, made available only if the application for extension is made within one year from the date of discovery of the fraud or cessation of force. Clause (a) of sub-section (1) of Section 17 of Limitation Act, 1963 is same as clause (a) of Section 26 of the English Act. There was no corresponding provision like clause (a) of sub-section (1) of Section 17 in Section 18 of the old Limitation Act and this provision has been introduced for the first time as a result of the amendment. All the decisions cited by Mr. Chagla have been rendered on Section 18 of Limitation Act, 1908. In view of the amendment incorporated in the Limitation Act, 1963 and specially the language in which Section 17 is cast now, they can have no application to the facts of the present case 27. Mr. Soli Sorabjee has also submitted that the continuance of the name of Bipinbhai in the register of the Company was a continuing wrong and, therefore, the period of limitation would begin to run at every moment of time during which the wrong name of Bipinbhai continues to remain in the register. Learned counsel has submitted that in such a situation the principles enshrined in Section 22of the Limitation Act will apply and the Company Petition cannot be held to be barred by limitation and the view to the contrary taken by the High Court is erroneous in law. Since we have held above that the Company Petition could not be dismissed on a preliminary issue, namely, as being barred by limitation as the petitioners had not been given opportunity to lead evidence and the finding of the High Court has been reversed on that point, we do not consider it appropriate to examine the aforesaid contention on merits. However, as the High Court has to hear the Company Petition again, the findings recorded by the High Court on the point of continuing wrong and condonation of delay are set side.
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### Explanation:
Judge has referred to the affidavit in reply filed by R.T. Doshi opposing the admission of the Company Petition and on the basis of the said affidavit has laid great emphasis on the fact that father Vadilal Lallubhai Mehta was present all along with the appellant No. 1 Ramesh B. Desai at all material times and that things were done in the presence of everyone, viz., two sons of Vadilal Lallubhai Mehta, namely, Bipinbhai and Suhasbhai. Emphasis has also been laid on the fact that the last cheque dated 25.11.1982 given by the Company to M/s. Santosh Starch Products was signed by the petitioner No. 1 Ramesh B. Desai himself. These are all questions of fact, findings on which could be recorded only after the parties had been given opportunity to adduce evidence. The mere fact that one cheque for Rs.5 lacs was signed by Ramesh B. Desai does not lead to the only inference that he got knowledge of the entire transaction relating to payment of Rs.20 lacs by the Company to M/s. Santosh Starch Products and the payment of the said amount on the same day by M/s. Santosh Starch Products to Bipinbhai and his family members. The learned Company Judge and the Division Bench in appeal have referred to these facts and have recorded a finding that the petitioners had knowledge of the entire transaction and the Company Petition was barred by limitation. It is important to point out that apart from Ramesh B. Desai there are 8 other shareholders who had filed the Company Petition. There is not even a slightest inkling in the impugned judgments of the High Court that the other 8 petitioners had acquired knowledge of the transaction much earlier. In our opinion the approach adopted by the High Court is clearly illegal as no finding on the point of knowledge could have been recorded until the parties had been given opportunity to lead evidence and in such circumstances dismissal of the Company Petition at a preliminary stage on the finding that it was barred by limitation is clearly erroneous in law21. Mr. Iqbal Chagla, learned counsel for the respondents, has submitted that the full particulars of fraud had not been given in the Company Petition and as such there was no compliance of Order VI Rule 4 CPC in the Company Petition and the learned Company Judge has rightly dismissed the same. In support of this submission he has placed reliance on Bishundeo Narain and another vs. Seogeni Rai and others AIR 1951 SC 280 wherein it was held that in case of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice however strong the language in which they are couched may be. Reliance has also been placed on Bijendra Nath Srivastava vs. Mayank Srivastava and others (1994) 6 SCC 117 and paragraphs 208 and 228 of the report in Sangramsinh P. Gaekwad and others vs. Shantadevi P. Gaekwad and others (2005) 11 SCC 314 , where the same principle has been reiterated.We have already considered this aspect of the matter and in our opinion in the acts and circumstances of the case the plea raised in the Company Petition cannot be held to be wanting in compliance of Order VI Rule 4 CPC24. In our opinion, in view of the facts pleaded in the Company Petition, the case is covered by Section 17(1)(a) of the Limitation Act and not by Section 17(1)(b) as the petitioners are not claiming any right or title over the shares of the Company, which according to them were purchased out of the funds of the Company. Section 17(1)(b) will apply when the plaintiff or applicant is claiming any kind of right or title to any moveable or immoveable property etc. Their simple case is that in view of the fact that the funds of the Company were utilized for purchase of shares by Bipinbhai, which were then recorded in his name, the whole transaction was in violation of Section 77 of the Companies Act, and consequently the register of the Company required to be rectified in accordance with Section 155 of the Companies Act. It was also pleaded that the petitioners had got no knowledge of the fraud played by the respondents of the Company Petition whereby the funds of the Company were utilized for purchase of shares and they came to know about it in May, 1987 through the criminal complaint. In view of the pleadings as aforesaid, it is Section 17(1)(a) of the Limitation Act which would govern the situation and not Section 17(1)(b) of the Limitation Act27. Mr. Soli Sorabjee has also submitted that the continuance of the name of Bipinbhai in the register of the Company was a continuing wrong and, therefore, the period of limitation would begin to run at every moment of time during which the wrong name of Bipinbhai continues to remain in the register. Learned counsel has submitted that in such a situation the principles enshrined in Section 22of the Limitation Act will apply and the Company Petition cannot be held to be barred by limitation and the view to the contrary taken by the High Court is erroneous inSince we have held above that the Company Petition could not be dismissed on a preliminary issue, namely, as being barred by limitation as the petitioners had not been given opportunity to lead evidence and the finding of the High Court has been reversed on that point, we do not consider it appropriate to examine the aforesaid contention on merits. However, as the High Court has to hear the Company Petition again, the findings recorded by the High Court on the point of continuing wrong and condonation of delay are set side.
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Moon Mills Ltd Vs. Industrial Court Bombay (M.R. Meher) & Ors
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an adjudicator under the Act, such an agreement cannot therefore, be directed to be enforced against the will of the appellant even under S. 114(2) inasmuch as by doing so the State Government would be going beyond the powers conferred on it by that section. The impugned notification, therefore, must be held to be bad inasmuch as it goes beyond the powers conferred on the State Government under S. 114(2) and must therefore, be struck down. " In our opinion, the present case falls directly within the ratio of the decision of this Court in Prakash Cotton Mills case (1962) 2 SCR 105: (AIR 1961 SC 977 ), and it follows, therefore, that the award of Mr. Bhat, dated April 25, 1958 is illegal and ultra vires and the decision of the Labour Court dated August 4, 1959 and of the Industrial Court, dated October 24, 1959 must be quashed by grant of a writ of certiorari. 6. On behalf of the respondents Mr. B. Sen, however, pointed out that the conduct of the appellant does not entitle it to the grant of a writ, because it has been guilty of acquiescence or delay. It was pointed out that the award of Mr. Bhat was given on April 25, 1958 but an application to the High Court for grant of a writ was made long after on November 16, 1959. We do not think there is any substance in this argument, because the second respondents had made an application, dated August 19, 1958 to the Labour Court for enforcement of the award and the appellant had contested that application by a Written Statement, dated September 15, 1958. The Labour Court allowed the application on August 4, 1959 and the appellant had preferred an appeal to the Industrial Court on August 31, 1959. The decision of the Industrial Court was given on October 24, 1959 and after the appeal was dismissed the appellant moved the High Court for grant of a writ on November 16, 1959. Mr. B. Sen then put forward the argument that the appellant itself had acted on the bonus agreement and on October 14, 1957 had issued a notice informing its workers that "pursuant to the award of the Industrial Court in terms of the agreement, dated March l, 1956 reached between the Millowners Association, Bombay, and the Rashtriya Mill Mazdoor Sangh, regarding payment of bonus would be paid to them at 4.8 per cent of the total basic earning during 1956". On October 27, 1956 the appellant and the Secretary of the second respondents signed a joint statement in which it was stated as follows : "Since it has not yet been possible to complete bonus calculations for all these years, it is hereby agreed between the Rashtriya Mill Mazdoor Sangh, Bombay, and the Moon Mills Ltd, Bombay, that under the Bonus Agreement the Moon Mills should pay a bonus at the rate of 4.8 per cent for each of the years 1953, 1954 and 1955 as a tentative payment." It was, therefore, contended that the appellant itself had agreed with the second respondents to pay bonus for 1953, 1954, 1955 and 1956 according to the terms of the bonus agreement. It was also pointed out that the appellant had not pressed its objection with regard to jurisdiction before the Labour Court or the Industrial Court. But it appears that the decision of this Court in Prakash Cotton Mills case, (1962) 2 SCR 105: (AIR 1961 SC 977 ), was given on February 16, 1961 after the decision of K. K. Desai, J. on July 1, 1960 and before the decision of the Letters Patent Bench on February 6, 1962. In the circumstances of this case, we do not consider that there is such acquiescence on the part of the appellant as to disentitle it to a grant of a writ under Art. 226 of the Constitution.It is true that the issue of a writ of certiorari is largely a matter of sound discretion. It is also true that the writ will not be granted if there is such negligence or omission on the part of the applicant to assert his right as, taken in conjunction with the lapse of time and other circumstances, causes prejudice to the adverse party. The principle is to a great extent, though not identical with, similar to the exercise of discretion in the Court of Chancery.The principle has been clearly stated by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd, Abram Farewell, and John Kemp, (1874) 5 PC 221 at p. 239, as follows:- "Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as related to the remedy." In the present case, we are of opinion that there is no such negligence or laches or acquiescence on the part of the appellant as may disentitle it to the grant of a writ.
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1[ds]We are unable to accept the argument of the respondents as correct. It was held by the majority judgment of this Court- in Prakash Cotton Mills case, (1962) 1 SCR 105 : (AIR 1961 SC 977 ), that the notification, dated July 31, 1956 was beyond the powers of the State Government under S. 114(2) of the Act, because there are three limitations on the State Governments power enacted under that sub-section: (1)It is limited by the subject-matter of the agreement or settlement, submission or award sought to be extended, (2) it has to be in conformity with the Industrial Law laid down by the Full Bench of the Industrial Court and also by any decision of this Court, and (3) the State Governments power to make a direction under that section is co-terminus with the power of an adjudicator and the State cannot do what an adjudicator cannot do under the Act. At p. 112 of the Report, (SCR): (at p. 979 of AIR), Wanchoo, J., speaking for the Court stated as follows:"The contention on behalf of the appellant is that it would not be open to an Industrial Court to grant bonus when profit was not adequate to meet all prior charges or where there was an actual loss and, therefore, when the impugned notification made it possible for grant of bonus even in these cases (for prima facie the appellant had made losses upto 1955), it directed something which even an Industrial Court could not do. In consequence, it is urged that the notification inasmuch as it makes this possible is beyond the powers conferred on the State Government under S. 114(2) because it allows something to be done which even an Industrial Court could not allow. Reliance in this connection is placed on the decision of this Court in New Manekchowk Spinning Co. Ltd. v. Textile Labour Association, (1961) 3 SCR 1 : (AIR 1961 SC 867 ). In that case this Court was considering a similar agreement relating to Ahmedabad. The Industrial Court had imposed that agreement after its expiry for one year on the mills in spite of their contention that they were not bound to pay any bonus for the years in dispute in view of the law laid down by this Court in The Associated Cement Companies Ltd. v. The Workmen, 1959 SCR 925 : (AIR 1959 SC 967 ). After examining the terms of the agreement then in dispute this Court came to the conclusion that in view of the law laid down in the Associated Cement Companies, case, the Industrial Court had no jurisdiction to impose that agreement on the mills. It further held that an agreement of that kind could only continue by consent of parties and could not be enforced by industrial adjudication against the will of any of the parties. The agreement in the present case directed to be enforced by the impugned notification is similar in terms and as held in The New Maneckchowks case, it could not be enforced by industrial adjudication against the will of any of the parties. The power of the State Government under Section 114(2) being co-terminus with the power of an adjudicator under the Act, such an agreement cannot therefore, be directed to be enforced against the will of the appellant even under S. 114(2) inasmuch as by doing so the State Government would be going beyond the powers conferred on it by that section. The impugned notification, therefore, must be held to be bad inasmuch as it goes beyond the powers conferred on the State Government under S. 114(2) and must therefore, be struck down. "In our opinion, the present case falls directly within the ratio of the decision of this Court in Prakash Cotton Mills case (1962) 2 SCR 105: (AIR 1961 SC 977 ), and it follows, therefore, that the award of Mr. Bhat, dated April 25, 1958 is illegal and ultra vires and the decision of the Labour Court dated August 4, 1959 and of the Industrial Court, dated October 24, 1959 must be quashed by grant of a writ of certiorariWe do not think there is any substance in this argument, because the second respondents had made an application, dated August 19, 1958 to the Labour Court for enforcement of the award and the appellant had contested that application by a Written Statement, dated September 15, 1958. The Labour Court allowed the application on August 4, 1959 and the appellant had preferred an appeal to the Industrial Court on August 31, 1959. The decision of the Industrial Court was given on October 24, 1959 and after the appeal was dismissed the appellant moved the High Court for grant of a writ on November 16, 1959But it appears that the decision of this Court in Prakash Cotton Mills case, (1962) 2 SCR 105: (AIR 1961 SC 977 ), was given on February 16, 1961 after the decision of K. K. Desai, J. on July 1, 1960 and before the decision of the Letters Patent Bench on February 6, 1962. In the circumstances of this case, we do not consider that there is such acquiescence on the part of the appellant as to disentitle it to a grant of a writ under Art. 226 of the Constitution.It is true that the issue of a writ of certiorari is largely a matter of sound discretion. It is also true that the writ will not be granted if there is such negligence or omission on the part of the applicant to assert his right as, taken in conjunction with the lapse of time and other circumstances, causes prejudice to the adverse partyThe principle has been clearly stated by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd, Abram Farewell, and John Kemp, (1874) 5 PC 221 at p. 239, as follows:"Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as related to the remedy."In the present case, we are of opinion that there is no such negligence or laches or acquiescence on the part of the appellant as may disentitle it to the grant of a writ.
| 1 | 3,161 | 1,366 |
### 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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an adjudicator under the Act, such an agreement cannot therefore, be directed to be enforced against the will of the appellant even under S. 114(2) inasmuch as by doing so the State Government would be going beyond the powers conferred on it by that section. The impugned notification, therefore, must be held to be bad inasmuch as it goes beyond the powers conferred on the State Government under S. 114(2) and must therefore, be struck down. " In our opinion, the present case falls directly within the ratio of the decision of this Court in Prakash Cotton Mills case (1962) 2 SCR 105: (AIR 1961 SC 977 ), and it follows, therefore, that the award of Mr. Bhat, dated April 25, 1958 is illegal and ultra vires and the decision of the Labour Court dated August 4, 1959 and of the Industrial Court, dated October 24, 1959 must be quashed by grant of a writ of certiorari. 6. On behalf of the respondents Mr. B. Sen, however, pointed out that the conduct of the appellant does not entitle it to the grant of a writ, because it has been guilty of acquiescence or delay. It was pointed out that the award of Mr. Bhat was given on April 25, 1958 but an application to the High Court for grant of a writ was made long after on November 16, 1959. We do not think there is any substance in this argument, because the second respondents had made an application, dated August 19, 1958 to the Labour Court for enforcement of the award and the appellant had contested that application by a Written Statement, dated September 15, 1958. The Labour Court allowed the application on August 4, 1959 and the appellant had preferred an appeal to the Industrial Court on August 31, 1959. The decision of the Industrial Court was given on October 24, 1959 and after the appeal was dismissed the appellant moved the High Court for grant of a writ on November 16, 1959. Mr. B. Sen then put forward the argument that the appellant itself had acted on the bonus agreement and on October 14, 1957 had issued a notice informing its workers that "pursuant to the award of the Industrial Court in terms of the agreement, dated March l, 1956 reached between the Millowners Association, Bombay, and the Rashtriya Mill Mazdoor Sangh, regarding payment of bonus would be paid to them at 4.8 per cent of the total basic earning during 1956". On October 27, 1956 the appellant and the Secretary of the second respondents signed a joint statement in which it was stated as follows : "Since it has not yet been possible to complete bonus calculations for all these years, it is hereby agreed between the Rashtriya Mill Mazdoor Sangh, Bombay, and the Moon Mills Ltd, Bombay, that under the Bonus Agreement the Moon Mills should pay a bonus at the rate of 4.8 per cent for each of the years 1953, 1954 and 1955 as a tentative payment." It was, therefore, contended that the appellant itself had agreed with the second respondents to pay bonus for 1953, 1954, 1955 and 1956 according to the terms of the bonus agreement. It was also pointed out that the appellant had not pressed its objection with regard to jurisdiction before the Labour Court or the Industrial Court. But it appears that the decision of this Court in Prakash Cotton Mills case, (1962) 2 SCR 105: (AIR 1961 SC 977 ), was given on February 16, 1961 after the decision of K. K. Desai, J. on July 1, 1960 and before the decision of the Letters Patent Bench on February 6, 1962. In the circumstances of this case, we do not consider that there is such acquiescence on the part of the appellant as to disentitle it to a grant of a writ under Art. 226 of the Constitution.It is true that the issue of a writ of certiorari is largely a matter of sound discretion. It is also true that the writ will not be granted if there is such negligence or omission on the part of the applicant to assert his right as, taken in conjunction with the lapse of time and other circumstances, causes prejudice to the adverse party. The principle is to a great extent, though not identical with, similar to the exercise of discretion in the Court of Chancery.The principle has been clearly stated by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd, Abram Farewell, and John Kemp, (1874) 5 PC 221 at p. 239, as follows:- "Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as related to the remedy." In the present case, we are of opinion that there is no such negligence or laches or acquiescence on the part of the appellant as may disentitle it to the grant of a writ.
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and, therefore, when the impugned notification made it possible for grant of bonus even in these cases (for prima facie the appellant had made losses upto 1955), it directed something which even an Industrial Court could not do. In consequence, it is urged that the notification inasmuch as it makes this possible is beyond the powers conferred on the State Government under S. 114(2) because it allows something to be done which even an Industrial Court could not allow. Reliance in this connection is placed on the decision of this Court in New Manekchowk Spinning Co. Ltd. v. Textile Labour Association, (1961) 3 SCR 1 : (AIR 1961 SC 867 ). In that case this Court was considering a similar agreement relating to Ahmedabad. The Industrial Court had imposed that agreement after its expiry for one year on the mills in spite of their contention that they were not bound to pay any bonus for the years in dispute in view of the law laid down by this Court in The Associated Cement Companies Ltd. v. The Workmen, 1959 SCR 925 : (AIR 1959 SC 967 ). After examining the terms of the agreement then in dispute this Court came to the conclusion that in view of the law laid down in the Associated Cement Companies, case, the Industrial Court had no jurisdiction to impose that agreement on the mills. It further held that an agreement of that kind could only continue by consent of parties and could not be enforced by industrial adjudication against the will of any of the parties. The agreement in the present case directed to be enforced by the impugned notification is similar in terms and as held in The New Maneckchowks case, it could not be enforced by industrial adjudication against the will of any of the parties. The power of the State Government under Section 114(2) being co-terminus with the power of an adjudicator under the Act, such an agreement cannot therefore, be directed to be enforced against the will of the appellant even under S. 114(2) inasmuch as by doing so the State Government would be going beyond the powers conferred on it by that section. The impugned notification, therefore, must be held to be bad inasmuch as it goes beyond the powers conferred on the State Government under S. 114(2) and must therefore, be struck down. "In our opinion, the present case falls directly within the ratio of the decision of this Court in Prakash Cotton Mills case (1962) 2 SCR 105: (AIR 1961 SC 977 ), and it follows, therefore, that the award of Mr. Bhat, dated April 25, 1958 is illegal and ultra vires and the decision of the Labour Court dated August 4, 1959 and of the Industrial Court, dated October 24, 1959 must be quashed by grant of a writ of certiorariWe do not think there is any substance in this argument, because the second respondents had made an application, dated August 19, 1958 to the Labour Court for enforcement of the award and the appellant had contested that application by a Written Statement, dated September 15, 1958. The Labour Court allowed the application on August 4, 1959 and the appellant had preferred an appeal to the Industrial Court on August 31, 1959. The decision of the Industrial Court was given on October 24, 1959 and after the appeal was dismissed the appellant moved the High Court for grant of a writ on November 16, 1959But it appears that the decision of this Court in Prakash Cotton Mills case, (1962) 2 SCR 105: (AIR 1961 SC 977 ), was given on February 16, 1961 after the decision of K. K. Desai, J. on July 1, 1960 and before the decision of the Letters Patent Bench on February 6, 1962. In the circumstances of this case, we do not consider that there is such acquiescence on the part of the appellant as to disentitle it to a grant of a writ under Art. 226 of the Constitution.It is true that the issue of a writ of certiorari is largely a matter of sound discretion. It is also true that the writ will not be granted if there is such negligence or omission on the part of the applicant to assert his right as, taken in conjunction with the lapse of time and other circumstances, causes prejudice to the adverse partyThe principle has been clearly stated by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd, Abram Farewell, and John Kemp, (1874) 5 PC 221 at p. 239, as follows:"Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as related to the remedy."In the present case, we are of opinion that there is no such negligence or laches or acquiescence on the part of the appellant as may disentitle it to the grant of a writ.
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Jivabhai Purshottam Vs. Chhagan Karson And Others
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force. The appellant further contends that the right to terminate a tenancy having arisen when the notice was given, the law to be applied, in case of notices given before the Amending Act came into force, would be the law existing on the date of notice.4. We are of opinion that there is no force in this contention. If we look at the words of sub-s. (2-A), it provides certain conditions subject to which the right to terminate the tenancy shall be exercised. It may be that S. 34(1) requires one years notice in order to exercise this right to terminate, but sub-s. (2-A) imposes restrictions on the landlords right to terminate the tenancy and does not speak of any notice at all. Therefore, when we have to look to the application of sub-sec. (2-A) it is the date on which the tenancy terminates which determines its application. The restriction by sub-sec. (2-A) is on the right to terminate the tenancy and this restriction would come into play on the day on which the landlords right to terminate the tenancy is perfected, namely, the day, on which the tenancy actually terminates in consequence of the notice given to terminate it. A notice under S. 34(1) is merely a declaration to the tenant of the intention of the landlord to terminate the tenancy; but it is always open to the landlord not to carry out his intention. Therefore, for the application of the restriction under sub-sec. (2-A) on the right of the landlord to terminate the tenancy, the crucial date is not the date of notice but the date on which the right to terminate matures, that is, the date on which the tenancy stands terminated. It is on that date that the court has to enforce the right of the landlord arising out of the notice of termination and, therefore, the court has to see whether the termination is in accordance with the restrictions imposed by sub-sec. (2-A) on the date the right is to be enforced.5. Nor are we impressed by the argument that by applying sub-sec. (2-A) to notices issued before the Amending Act came into force we would be taking away the vested right of the landlord. As we have already pointed out, the notice under S. 34(1) is merely a declaration to the tenant of the landlords intention to terminate the tenancy and no further proceedings may be taken by the landlord in consequence thereof. It is only when the period of notice has expired and the tenancy has terminated that the landlord acquires a vested right to obtain possession of the land. Therefore, the Amending Act did not affect any vested right of the landlords till the tenancy actually stood terminated after the expiry of the notice. Consequently, the provisions of the Amending Act which came into force before the tenancy stood terminated by the notice will have to be taken into consideration in determining the right of the landlord in the matter of the termination of tenancy, for the Amending Act put certain fetters on this right of termination. In the circumstances, we are of opinion that the view taken by the High Court is correct and sub-s. (2-A) would apply to all cases where notices might have been given but where the tenancy had not actually terminated before the coming into force of he Amending Act.6. This view, which appears to us to be plain enough on the words of sub-sec. (2-A), is further enforced by another consideration, even if there is any doubt as to the meaning of sub-sec. (2-A).That consideration is that the Amending Act is a piece of beneficent legislation meant for the protection of tenants. Therefore, if there is any doubt about the meaning of sub-s. (2-A) that doubt should be resolved in favour of the tenant for whose benefit the Amending Act was passed. In this view it is obvious that the legislature could not have intended that the benefit of this beneficent measure should not be extended to tenants in whose cases the tenancy had not yet terminated, though notices had been given, when the further restrictions were being put on the right to terminate the tenancy.7. Learned counsel for the appellant has drawn our attention in this connection to Jibankrishna v. Abdul Kader, ILR 60 Cal 1037 : (AIR 1933 Cal 435 ) (SB). In that case, the Bengal Tenancy Act was amended and the amendment provided that a tenant would be liable to ejectment on one years notice by the landlord. The earlier law provided for a notice of ejectment but did not provide that the notice should be for one year; it provided no period of notice, whatsoever and it was sufficient under it to give notice expiring with the end of an agricultural year in order to effect ejectment, howsoever short might be the period of notice. The question, therefore, arose whether the amendment applied to notices given under the old law, and the Calcutta High Court held that it did not. The circumstances under which that decision was given are entirely different from the circumstances of the present case. In that case the contents of notice were changed; while formerly what was required was a notice without any particular period, the amendment required a notice of one year. There was no provision in the Amending Act making notices which were in accordance with previous law ineffective. In these circumstances the Calcutta High Court was right in holding that the amendment did not affect notices already given. No such question, however, arises in the present case. The period of notice is the same before and after the amendment in the present case, and what we have to see is whether the crucial date for the application of the new sub-sec. (2-A) is the date of the notice or the date of the termination of the tenancy. We have already held that that date must be the date of the termination of the tenancy.
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0[ds]4. We are of opinion that there is no force in this contention. If we look at the words of sub-s. (2-A), it provides certain conditions subject to which the right to terminate the tenancy shall be exercised. It may be that S. 34(1) requires one years notice in order to exercise this right to terminate, but sub-s. (2-A) imposes restrictions on the landlords right to terminate the tenancy and does not speak of any notice at all. Therefore, when we have to look to the application of sub-sec. (2-A) it is the date on which the tenancy terminates which determines its application. The restriction by sub-sec. (2-A) is on the right to terminate the tenancy and this restriction would come into play on the day on which the landlords right to terminate the tenancy is perfected, namely, the day, on which the tenancy actually terminates in consequence of the notice given to terminate it. A notice under S. 34(1) is merely a declaration to the tenant of the intention of the landlord to terminate the tenancy; but it is always open to the landlord not to carry out his intention. Therefore, for the application of the restriction under sub-sec. (2-A) on the right of the landlord to terminate the tenancy, the crucial date is not the date of notice but the date on which the right to terminate matures, that is, the date on which the tenancy stands terminated. It is on that date that the court has to enforce the right of the landlord arising out of the notice of termination and, therefore, the court has to see whether the termination is in accordance with the restrictions imposed by sub-sec. (2-A) on the date the right is to be enforced.5. Nor are we impressed by the argument that by applying sub-sec. (2-A) to notices issued before the Amending Act came into force we would be taking away the vested right of the landlord. As we have already pointed out, the notice under S. 34(1) is merely a declaration to the tenant of the landlords intention to terminate the tenancy and no further proceedings may be taken by the landlord in consequence thereof. It is only when the period of notice has expired and the tenancy has terminated that the landlord acquires a vested right to obtain possession of the land. Therefore, the Amending Act did not affect any vested right of the landlords till the tenancy actually stood terminated after the expiry of the notice. Consequently, the provisions of the Amending Act which came into force before the tenancy stood terminated by the notice will have to be taken into consideration in determining the right of the landlord in the matter of the termination of tenancy, for the Amending Act put certain fetters on this right of termination. In the circumstances, we are of opinion that the view taken by the High Court is correct and sub-s. (2-A) would apply to all cases where notices might have been given but where the tenancy had not actually terminated before the coming into force of he Amending Act.6. This view, which appears to us to be plain enough on the words of sub-sec. (2-A), is further enforced by another consideration, even if there is any doubt as to the meaning of sub-sec. (2-A).That consideration is that the Amending Act is a piece of beneficent legislation meant for the protection of tenants. Therefore, if there is any doubt about the meaning of sub-s. (2-A) that doubt should be resolved in favour of the tenant for whose benefit the Amending Act was passed. In this view it is obvious that the legislature could not have intended that the benefit of this beneficent measure should not be extended to tenants in whose cases the tenancy had not yet terminated, though notices had been given, when the further restrictions were being put on the right to terminate thewas no provision in the Amending Act making notices which were in accordance with previous law ineffective. In these circumstances the Calcutta High Court was right in holding that the amendment did not affect notices already given. No such question, however, arises in the present case. The period of notice is the same before and after the amendment in the present case, and what we have to see is whether the crucial date for the application of the new sub-sec. (2-A) is the date of the notice or the date of the termination of the tenancy. We have already held that that date must be the date of the termination of the tenancy.
| 0 | 2,245 | 861 |
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Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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force. The appellant further contends that the right to terminate a tenancy having arisen when the notice was given, the law to be applied, in case of notices given before the Amending Act came into force, would be the law existing on the date of notice.4. We are of opinion that there is no force in this contention. If we look at the words of sub-s. (2-A), it provides certain conditions subject to which the right to terminate the tenancy shall be exercised. It may be that S. 34(1) requires one years notice in order to exercise this right to terminate, but sub-s. (2-A) imposes restrictions on the landlords right to terminate the tenancy and does not speak of any notice at all. Therefore, when we have to look to the application of sub-sec. (2-A) it is the date on which the tenancy terminates which determines its application. The restriction by sub-sec. (2-A) is on the right to terminate the tenancy and this restriction would come into play on the day on which the landlords right to terminate the tenancy is perfected, namely, the day, on which the tenancy actually terminates in consequence of the notice given to terminate it. A notice under S. 34(1) is merely a declaration to the tenant of the intention of the landlord to terminate the tenancy; but it is always open to the landlord not to carry out his intention. Therefore, for the application of the restriction under sub-sec. (2-A) on the right of the landlord to terminate the tenancy, the crucial date is not the date of notice but the date on which the right to terminate matures, that is, the date on which the tenancy stands terminated. It is on that date that the court has to enforce the right of the landlord arising out of the notice of termination and, therefore, the court has to see whether the termination is in accordance with the restrictions imposed by sub-sec. (2-A) on the date the right is to be enforced.5. Nor are we impressed by the argument that by applying sub-sec. (2-A) to notices issued before the Amending Act came into force we would be taking away the vested right of the landlord. As we have already pointed out, the notice under S. 34(1) is merely a declaration to the tenant of the landlords intention to terminate the tenancy and no further proceedings may be taken by the landlord in consequence thereof. It is only when the period of notice has expired and the tenancy has terminated that the landlord acquires a vested right to obtain possession of the land. Therefore, the Amending Act did not affect any vested right of the landlords till the tenancy actually stood terminated after the expiry of the notice. Consequently, the provisions of the Amending Act which came into force before the tenancy stood terminated by the notice will have to be taken into consideration in determining the right of the landlord in the matter of the termination of tenancy, for the Amending Act put certain fetters on this right of termination. In the circumstances, we are of opinion that the view taken by the High Court is correct and sub-s. (2-A) would apply to all cases where notices might have been given but where the tenancy had not actually terminated before the coming into force of he Amending Act.6. This view, which appears to us to be plain enough on the words of sub-sec. (2-A), is further enforced by another consideration, even if there is any doubt as to the meaning of sub-sec. (2-A).That consideration is that the Amending Act is a piece of beneficent legislation meant for the protection of tenants. Therefore, if there is any doubt about the meaning of sub-s. (2-A) that doubt should be resolved in favour of the tenant for whose benefit the Amending Act was passed. In this view it is obvious that the legislature could not have intended that the benefit of this beneficent measure should not be extended to tenants in whose cases the tenancy had not yet terminated, though notices had been given, when the further restrictions were being put on the right to terminate the tenancy.7. Learned counsel for the appellant has drawn our attention in this connection to Jibankrishna v. Abdul Kader, ILR 60 Cal 1037 : (AIR 1933 Cal 435 ) (SB). In that case, the Bengal Tenancy Act was amended and the amendment provided that a tenant would be liable to ejectment on one years notice by the landlord. The earlier law provided for a notice of ejectment but did not provide that the notice should be for one year; it provided no period of notice, whatsoever and it was sufficient under it to give notice expiring with the end of an agricultural year in order to effect ejectment, howsoever short might be the period of notice. The question, therefore, arose whether the amendment applied to notices given under the old law, and the Calcutta High Court held that it did not. The circumstances under which that decision was given are entirely different from the circumstances of the present case. In that case the contents of notice were changed; while formerly what was required was a notice without any particular period, the amendment required a notice of one year. There was no provision in the Amending Act making notices which were in accordance with previous law ineffective. In these circumstances the Calcutta High Court was right in holding that the amendment did not affect notices already given. No such question, however, arises in the present case. The period of notice is the same before and after the amendment in the present case, and what we have to see is whether the crucial date for the application of the new sub-sec. (2-A) is the date of the notice or the date of the termination of the tenancy. We have already held that that date must be the date of the termination of the tenancy.
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4. We are of opinion that there is no force in this contention. If we look at the words of sub-s. (2-A), it provides certain conditions subject to which the right to terminate the tenancy shall be exercised. It may be that S. 34(1) requires one years notice in order to exercise this right to terminate, but sub-s. (2-A) imposes restrictions on the landlords right to terminate the tenancy and does not speak of any notice at all. Therefore, when we have to look to the application of sub-sec. (2-A) it is the date on which the tenancy terminates which determines its application. The restriction by sub-sec. (2-A) is on the right to terminate the tenancy and this restriction would come into play on the day on which the landlords right to terminate the tenancy is perfected, namely, the day, on which the tenancy actually terminates in consequence of the notice given to terminate it. A notice under S. 34(1) is merely a declaration to the tenant of the intention of the landlord to terminate the tenancy; but it is always open to the landlord not to carry out his intention. Therefore, for the application of the restriction under sub-sec. (2-A) on the right of the landlord to terminate the tenancy, the crucial date is not the date of notice but the date on which the right to terminate matures, that is, the date on which the tenancy stands terminated. It is on that date that the court has to enforce the right of the landlord arising out of the notice of termination and, therefore, the court has to see whether the termination is in accordance with the restrictions imposed by sub-sec. (2-A) on the date the right is to be enforced.5. Nor are we impressed by the argument that by applying sub-sec. (2-A) to notices issued before the Amending Act came into force we would be taking away the vested right of the landlord. As we have already pointed out, the notice under S. 34(1) is merely a declaration to the tenant of the landlords intention to terminate the tenancy and no further proceedings may be taken by the landlord in consequence thereof. It is only when the period of notice has expired and the tenancy has terminated that the landlord acquires a vested right to obtain possession of the land. Therefore, the Amending Act did not affect any vested right of the landlords till the tenancy actually stood terminated after the expiry of the notice. Consequently, the provisions of the Amending Act which came into force before the tenancy stood terminated by the notice will have to be taken into consideration in determining the right of the landlord in the matter of the termination of tenancy, for the Amending Act put certain fetters on this right of termination. In the circumstances, we are of opinion that the view taken by the High Court is correct and sub-s. (2-A) would apply to all cases where notices might have been given but where the tenancy had not actually terminated before the coming into force of he Amending Act.6. This view, which appears to us to be plain enough on the words of sub-sec. (2-A), is further enforced by another consideration, even if there is any doubt as to the meaning of sub-sec. (2-A).That consideration is that the Amending Act is a piece of beneficent legislation meant for the protection of tenants. Therefore, if there is any doubt about the meaning of sub-s. (2-A) that doubt should be resolved in favour of the tenant for whose benefit the Amending Act was passed. In this view it is obvious that the legislature could not have intended that the benefit of this beneficent measure should not be extended to tenants in whose cases the tenancy had not yet terminated, though notices had been given, when the further restrictions were being put on the right to terminate thewas no provision in the Amending Act making notices which were in accordance with previous law ineffective. In these circumstances the Calcutta High Court was right in holding that the amendment did not affect notices already given. No such question, however, arises in the present case. The period of notice is the same before and after the amendment in the present case, and what we have to see is whether the crucial date for the application of the new sub-sec. (2-A) is the date of the notice or the date of the termination of the tenancy. We have already held that that date must be the date of the termination of the tenancy.
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The Principal Commissioner of Customs Pune Commissionerate Vs. JSW Steel Ltd
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1962 which is quoted as under: 46. Entry of goods on importation (1) The importer of any goods, other than goods intended for transit or transhipment, shall make entry thereof by presenting electronically on the customs automated system to the proper officer a bill of entry for home consumption or warehousing in such form and manner as may be prescribed. PROVIDED that the Principal Commissioner of Customs or Commissioner of Customs may, in cases where it is not feasible to make entry by presenting electronically on the customs automated system, allow an entry to be presented in any other manner: PROVIDED FURTHER that if the importer makes and subscribes to a declaration before the proper officer, to the effect that he is unable for want of full information to furnish all the particulars of the goods required under this sub-section, the proper officer may, pending the production of such information, permit him, previous to the entry thereof (a) to examine the goods in the presence of an officer of customs, or (b) to deposit the goods in a public warehouse appointed under section 57 without warehousing the same. (2) Save as otherwise permitted by the proper officer, a bill of entry shall include all the goods mentioned in the bill of lading or other receipt given by the carrier to the consignor. (3) The importer shall present the bill of entry under subsection (1) before the end of the next day following the day (excluding holidays) on which the aircraft or vessel or vehicle carrying the goods arrives at a customs station at which such goods are to be cleared for home consumption or warehousing: PROVIDED that a bill of entry may be presented at any time not exceeding thirty days prior to the expected arrival of the aircraft or vessel or vehicle by which the goods have been shipped for importation into India: PROVIDED FURTHER that where the bill of entry is not presented within the time so specified and the proper officer is satisfied that there was no sufficient cause for such delay, the importer shall pay such charges for late presentation of the bill of entry as may be prescribed. (4) The importer while presenting a bill of entry shall make and subscribe to a declaration as to the truth of the contents of such bill of entry and shall, in support of such declaration, produce to the proper officer the invoice, if any, and such other documents relating to the imported goods as may be prescribed. (4A) The importer who presents a bill of entry shall ensure the following, namely:- (a) the accuracy and completeness of the information given therein; (b) the authenticity and validity of any document supporting it; and (c) compliance with the restriction or prohibition, if any, relating to the goods under this Act or under any other law for the time being in force. (5) If the proper officer is satisfied that the interests of revenue are not prejudicially affected and that there was no fraudulent intention, he may permit substitution of a bill of entry for home consumption for a bill of entry for warehousing or vice versa. (Emphasis supplied) 13. We observe from Section 46(3) of the Act that an Importer is to present a Bill of Entry for home consumption or for warehousing in the prescribed form before the end of the next day following the day on which, the vessel carrying the goods arrives at a customs station at which such goods are to be cleared. There is a proviso which allows a period of thirty days for presentation of an advance bill of entry. The second proviso is the one we are concerned with which provides that where the Bill of Entry is not presented within the time, and the proper officer is satisfied that there was no sufficient cause for such delay, the Importer shall pay such charges for late presentation of the Bill of Entry as may be prescribed. 14. In the present case, we observe that the Respondent-Company had filed the Bill of Entry No.9375854 for the entire quantity on 20th April, 2017 within the prescribed time limit and as such, there was no objection to the same. It had also paid the entire duty for 98450 metric tons of Goonyella C Coking Coal, even though, 1,341 metric tons had not landed in Marmagao but had landed in Jaigad and as soon as the amendments to the IGM were approved by the Appellant on 14th March, 2018, again the Respondent-Company filed the Bill of Entry on the very same day in respect of 1,341 metric tons. The Commissioner of Customs in its order which has been upheld by the Tribunal has observed that the Respondent-Company has demonstrated its bona fides and we agree with the same. The second proviso clearly invests a discretion on the Authorities while considering levy of late payment charges as imposed on the Respondent-Company. The satisfaction for sufficiency of cause is a subjective satisfaction which has to be exercised judiciously. The Assessing Officer has based on technicalities and without any judicious application of mind, levied the late payment charges which have been rightly set aside by the Appellate Authority and the Tribunal. By no stretch of imagination, it can be said that the Respondent-Company has not acted bona fide. The entire confusion was due to the short landing of 1,341 metric tons of Goonyella C Coking Coal at Marmagao though full duty in respect of which has been paid by the Respondent-Company and even after it was found out that 1,341 metric tons was landed in Jaigad, the RespondentCompany has taken efforts to get the IGM amended and no sooner the the IGM was amended, the Bill of Entry in respect thereof was filed on the same day within time. This shows the Respondent Companys eagerness to be on the right side of the law. We are satisfied that the Respondent-Company has shown its bona fides by all these actions.
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0[ds]11. The facts are undisputed. The vessel MV CAPE IOANNA arrived at Marmagao Port and Bill of Entry No.9375854 dated 20th April, 2017 for 98,450 metric tons in respect of Goonyella Coking Coal was filed at Marmagao Port by the Respondent-Company and the same was also assessed provisionally for the entire quantity and allowed clearance on payment of duty of the said goods although, 1,341 metric tons at Jaigad Port discharged by the same vessel remained uncleared though the entire duty had been paid at Marmagao Port. It is also undisputed that after getting the knowledge, the Respondent-Company requested for the required amendments to the IGM which was finally carried out by the Customs Authorities on 14th March, 2018 after which, the Bill of Entry for 1,341 metric tons was filed on 14th March, 2018 itself undisputedly without any delay.13. We observe from Section 46(3) of the Act that an Importer is to present a Bill of Entry for home consumption or for warehousing in the prescribed form before the end of the next day following the day on which, the vessel carrying the goods arrives at a customs station at which such goods are to be cleared. There is a proviso which allows a period of thirty days for presentation of an advance bill of entry. The second proviso is the one we are concerned with which provides that where the Bill of Entry is not presented within the time, and the proper officer is satisfied that there was no sufficient cause for such delay, the Importer shall pay such charges for late presentation of the Bill of Entry as may be prescribed.14. In the present case, we observe that the Respondent-Company had filed the Bill of Entry No.9375854 for the entire quantity on 20th April, 2017 within the prescribed time limit and as such, there was no objection to the same. It had also paid the entire duty for 98450 metric tons of Goonyella C Coking Coal, even though, 1,341 metric tons had not landed in Marmagao but had landed in Jaigad and as soon as the amendments to the IGM were approved by the Appellant on 14th March, 2018, again the Respondent-Company filed the Bill of Entry on the very same day in respect of 1,341 metric tons. The Commissioner of Customs in its order which has been upheld by the Tribunal has observed that the Respondent-Company has demonstrated its bona fides and we agree with the same. The second proviso clearly invests a discretion on the Authorities while considering levy of late payment charges as imposed on the Respondent-Company. The satisfaction for sufficiency of cause is a subjective satisfaction which has to be exercised judiciously. The Assessing Officer has based on technicalities and without any judicious application of mind, levied the late payment charges which have been rightly set aside by the Appellate Authority and the Tribunal. By no stretch of imagination, it can be said that the Respondent-Company has not acted bona fide. The entire confusion was due to the short landing of 1,341 metric tons of Goonyella C Coking Coal at Marmagao though full duty in respect of which has been paid by the Respondent-Company and even after it was found out that 1,341 metric tons was landed in Jaigad, the RespondentCompany has taken efforts to get the IGM amended and no sooner the the IGM was amended, the Bill of Entry in respect thereof was filed on the same day within time. This shows the Respondent Companys eagerness to be on the right side of the law. We are satisfied that the Respondent-Company has shown its bona fides by all these actions.
| 0 | 4,567 | 653 |
### 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:
1962 which is quoted as under: 46. Entry of goods on importation (1) The importer of any goods, other than goods intended for transit or transhipment, shall make entry thereof by presenting electronically on the customs automated system to the proper officer a bill of entry for home consumption or warehousing in such form and manner as may be prescribed. PROVIDED that the Principal Commissioner of Customs or Commissioner of Customs may, in cases where it is not feasible to make entry by presenting electronically on the customs automated system, allow an entry to be presented in any other manner: PROVIDED FURTHER that if the importer makes and subscribes to a declaration before the proper officer, to the effect that he is unable for want of full information to furnish all the particulars of the goods required under this sub-section, the proper officer may, pending the production of such information, permit him, previous to the entry thereof (a) to examine the goods in the presence of an officer of customs, or (b) to deposit the goods in a public warehouse appointed under section 57 without warehousing the same. (2) Save as otherwise permitted by the proper officer, a bill of entry shall include all the goods mentioned in the bill of lading or other receipt given by the carrier to the consignor. (3) The importer shall present the bill of entry under subsection (1) before the end of the next day following the day (excluding holidays) on which the aircraft or vessel or vehicle carrying the goods arrives at a customs station at which such goods are to be cleared for home consumption or warehousing: PROVIDED that a bill of entry may be presented at any time not exceeding thirty days prior to the expected arrival of the aircraft or vessel or vehicle by which the goods have been shipped for importation into India: PROVIDED FURTHER that where the bill of entry is not presented within the time so specified and the proper officer is satisfied that there was no sufficient cause for such delay, the importer shall pay such charges for late presentation of the bill of entry as may be prescribed. (4) The importer while presenting a bill of entry shall make and subscribe to a declaration as to the truth of the contents of such bill of entry and shall, in support of such declaration, produce to the proper officer the invoice, if any, and such other documents relating to the imported goods as may be prescribed. (4A) The importer who presents a bill of entry shall ensure the following, namely:- (a) the accuracy and completeness of the information given therein; (b) the authenticity and validity of any document supporting it; and (c) compliance with the restriction or prohibition, if any, relating to the goods under this Act or under any other law for the time being in force. (5) If the proper officer is satisfied that the interests of revenue are not prejudicially affected and that there was no fraudulent intention, he may permit substitution of a bill of entry for home consumption for a bill of entry for warehousing or vice versa. (Emphasis supplied) 13. We observe from Section 46(3) of the Act that an Importer is to present a Bill of Entry for home consumption or for warehousing in the prescribed form before the end of the next day following the day on which, the vessel carrying the goods arrives at a customs station at which such goods are to be cleared. There is a proviso which allows a period of thirty days for presentation of an advance bill of entry. The second proviso is the one we are concerned with which provides that where the Bill of Entry is not presented within the time, and the proper officer is satisfied that there was no sufficient cause for such delay, the Importer shall pay such charges for late presentation of the Bill of Entry as may be prescribed. 14. In the present case, we observe that the Respondent-Company had filed the Bill of Entry No.9375854 for the entire quantity on 20th April, 2017 within the prescribed time limit and as such, there was no objection to the same. It had also paid the entire duty for 98450 metric tons of Goonyella C Coking Coal, even though, 1,341 metric tons had not landed in Marmagao but had landed in Jaigad and as soon as the amendments to the IGM were approved by the Appellant on 14th March, 2018, again the Respondent-Company filed the Bill of Entry on the very same day in respect of 1,341 metric tons. The Commissioner of Customs in its order which has been upheld by the Tribunal has observed that the Respondent-Company has demonstrated its bona fides and we agree with the same. The second proviso clearly invests a discretion on the Authorities while considering levy of late payment charges as imposed on the Respondent-Company. The satisfaction for sufficiency of cause is a subjective satisfaction which has to be exercised judiciously. The Assessing Officer has based on technicalities and without any judicious application of mind, levied the late payment charges which have been rightly set aside by the Appellate Authority and the Tribunal. By no stretch of imagination, it can be said that the Respondent-Company has not acted bona fide. The entire confusion was due to the short landing of 1,341 metric tons of Goonyella C Coking Coal at Marmagao though full duty in respect of which has been paid by the Respondent-Company and even after it was found out that 1,341 metric tons was landed in Jaigad, the RespondentCompany has taken efforts to get the IGM amended and no sooner the the IGM was amended, the Bill of Entry in respect thereof was filed on the same day within time. This shows the Respondent Companys eagerness to be on the right side of the law. We are satisfied that the Respondent-Company has shown its bona fides by all these actions.
### Response:
0
### Explanation:
11. The facts are undisputed. The vessel MV CAPE IOANNA arrived at Marmagao Port and Bill of Entry No.9375854 dated 20th April, 2017 for 98,450 metric tons in respect of Goonyella Coking Coal was filed at Marmagao Port by the Respondent-Company and the same was also assessed provisionally for the entire quantity and allowed clearance on payment of duty of the said goods although, 1,341 metric tons at Jaigad Port discharged by the same vessel remained uncleared though the entire duty had been paid at Marmagao Port. It is also undisputed that after getting the knowledge, the Respondent-Company requested for the required amendments to the IGM which was finally carried out by the Customs Authorities on 14th March, 2018 after which, the Bill of Entry for 1,341 metric tons was filed on 14th March, 2018 itself undisputedly without any delay.13. We observe from Section 46(3) of the Act that an Importer is to present a Bill of Entry for home consumption or for warehousing in the prescribed form before the end of the next day following the day on which, the vessel carrying the goods arrives at a customs station at which such goods are to be cleared. There is a proviso which allows a period of thirty days for presentation of an advance bill of entry. The second proviso is the one we are concerned with which provides that where the Bill of Entry is not presented within the time, and the proper officer is satisfied that there was no sufficient cause for such delay, the Importer shall pay such charges for late presentation of the Bill of Entry as may be prescribed.14. In the present case, we observe that the Respondent-Company had filed the Bill of Entry No.9375854 for the entire quantity on 20th April, 2017 within the prescribed time limit and as such, there was no objection to the same. It had also paid the entire duty for 98450 metric tons of Goonyella C Coking Coal, even though, 1,341 metric tons had not landed in Marmagao but had landed in Jaigad and as soon as the amendments to the IGM were approved by the Appellant on 14th March, 2018, again the Respondent-Company filed the Bill of Entry on the very same day in respect of 1,341 metric tons. The Commissioner of Customs in its order which has been upheld by the Tribunal has observed that the Respondent-Company has demonstrated its bona fides and we agree with the same. The second proviso clearly invests a discretion on the Authorities while considering levy of late payment charges as imposed on the Respondent-Company. The satisfaction for sufficiency of cause is a subjective satisfaction which has to be exercised judiciously. The Assessing Officer has based on technicalities and without any judicious application of mind, levied the late payment charges which have been rightly set aside by the Appellate Authority and the Tribunal. By no stretch of imagination, it can be said that the Respondent-Company has not acted bona fide. The entire confusion was due to the short landing of 1,341 metric tons of Goonyella C Coking Coal at Marmagao though full duty in respect of which has been paid by the Respondent-Company and even after it was found out that 1,341 metric tons was landed in Jaigad, the RespondentCompany has taken efforts to get the IGM amended and no sooner the the IGM was amended, the Bill of Entry in respect thereof was filed on the same day within time. This shows the Respondent Companys eagerness to be on the right side of the law. We are satisfied that the Respondent-Company has shown its bona fides by all these actions.
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V.S.S.V. Meenakshi Achi and Ors Vs. Commissioner of Income Tax, Madras
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distributed in terms of the Second Schedule. Both the funds were divided again into Fund A and Fund B. Fund A was established on behalf of owners of property of which an area of not less than Ac. 100 - 00 was planted and Fund B on behalf of owners who owned an area of less than Ac. 100 - 00."9. In this case, though Mr. Sastri contended to the contrary, as we have pointed out earlier, the whole proceedings were conducted on the basis that there was a scheme embodying the principles of the First Schedule. It was not disputed that the property of the appellants was not planted entirely with high-yielding rubber trees within the meaning of clause 6. If so, the only question is, what was the nature of the payments made.10. Advertising to the First Schedule of the Ordinance, under clause (4) the cesses collected on rubber produced in Penang and rubber exported from the Federation other than Panang were credited to the accounts of the appellants in such proportions corresponding to the amount of rubber produced by them in the period during which the said cesses were collected. Thereafter, the said amounts were paid to the appellants against expenditure actually incurred since 1st January, 1946, by the appellants on the maintenance of the plantations.On what basis the amounts were paid from the fund to the assesses, there is dearth of material. We have to proceed only on the terms of clauses (4) and (5) of the First Schedule and the admissions recorded by the Tribunal. The Tribunal recorded in its order the concessions made by the assessee to the following effect :"The assessee has conceded before us that it did not have any high- yielding rubber trees. So next position is it is based upon expenditure incurred after 1st January, 1946. It is also admitted that he has claimed such expenses and had them allowed. But these expenses, we find from the records, are based on the production and not on actual expenses shown as having been incurred by the assessee. So it will be difficult, in our opinion, to hold that this is a reimbursement of any expenditure outlay. The assessee might have incurred more or less than the expenses reimbursed to it on the basis of production."11. The following facts therefore emerge. The assessees owned rubber plantations before 1st January, 1946; the assessees being only planters did not pay any duty for rubber exported; the cess or cesses were collected only on rubber produced in Penang and on rubber exported from the Federation other than Penang; the amounts were credited against the appellants corresponding to the amount of rubber produced by them and payments were made from the said amounts to the assessees against expenditure incurred on the maintenance of the plantations.12. The High Court held the said payments were revenue receipts on the following reasoning :"It is perfectly clear that the source of the amounts was the production or the export of the rubber itself by the owners of the plantations. If the money had been paid over as a deduction or an abatement of duty at the stage of production or export, it would not be possible to urge, as the assessees purport to do, that it was anything other than a trading receipt. The mere fact that the statue intervened, collected all of these amounts together in the shape of a fund in which the sums were undeniably earmarked to each and every one of the plantation owners and made payable on the fulfillment of certain conditions does not affect the character of the source of the receipt. It would still remain a trading receipt and the condition that the sums should not be utilised or were to be paid against the sums expended for replanting would not affect the nature of the receipt itself."13. Briefly stated, the basis of the High Courts judgment is that the assessees contributed to the Fund by paying duty on the export of rubber and therefore the repayment made to them from out of the Fund must be correlated to the production of rubber. It was clear from the facts narrated above that the assessees were only partners and they were not exporters and therefore they did not pay any duty under the Ordinance to the Government. Mr. Sastri, the learned counsel for the revenue, did not support the principle accepted by the High Court that the source of payment was material and not the nature of expenditure. Indeed his argument was contrariwise, namely, that the expenditure was revenue expenditure and therefore the amounts paid to recoup it partook of that character.14. The decision in Higgs v. Wrightson is rather apposite. There the appellant was a dairy farmer, the greater part of whose land was, before the war, permanent pasture. Under the Agricultural Development Act, 1939, and the Agriculture (Miscellaneous War Provisions) Act, 1940, he received grants in respect of the ploughing and bringing into a state of cleanliness and fertility land previously under grass for a period of seven years or more. The court held that the ploughing grant was a revenue receipt. Macnaghten J. observed :"Since the amount of the grant depends on the area ploughed, it would seem to be a grant towards the expense of the ploughing...."15. So too, in the instant case, the payments to the planters were made against the expenditure incurred for maintaining the rubber plantations.16. Having regard to the aforesaid facts, we must hold that the amounts from the fund earmarked for the appellants on the basis of the rubber produced by them were paid against the expenditure incurred by them for maintaining the rubber plantation and producing the rubber. If so, it follows that the receipts by the assessees during the accounting year were revenue receipts and, therefore, liable to be included in their assessable income. We therefore hold, though the different reasons, that the High Court has rightly answered the questions against the assessees.
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0[ds]At the outset, it would be convenient to clear the ground. Throughout the proceedings, it was assumed that a scheme was framed embodying the principles laid down in the first Schedule to the Ordinance and that the payments were made in terms of the scheme. We cannot, therefore, permit the learned counsel for the revenue to change his ground and base his case on the Second Schedule. It may also be made clear that the assessees were only planters and were maintaining the plantations : they were not carrying on any business in rubber; the said amounts in their hands were assessed as income derived from plantations.In this case, though Mr. Sastri contended to the contrary, as we have pointed out earlier, the whole proceedings were conducted on the basis that there was a scheme embodying the principles of the First Schedule. It was not disputed that the property of the appellants was not planted entirely withrubber trees within the meaning of clause 6.Briefly stated, the basis of the High Courts judgment is that the assessees contributed to the Fund by paying duty on the export of rubber and therefore the repayment made to them from out of the Fund must be correlated to the production of rubber. It was clear from the facts narrated above that the assessees were only partners and they were not exporters and therefore they did not pay any duty under the Ordinance to the Government. Mr. Sastri, the learned counsel for the revenue, did not support the principle accepted by the High Court that the source of payment was material and not the nature of expenditure. Indeed his argument was contrariwise, namely, that the expenditure was revenue expenditure and therefore the amounts paid to recoup it partook of that character.So too, in the instant case, the payments to the planters were made against the expenditure incurred for maintaining the rubber plantations.16. Having regard to the aforesaid facts, we must hold that the amounts from the fund earmarked for the appellants on the basis of the rubber produced by them were paid against the expenditure incurred by them for maintaining the rubber plantation and producing the rubber. If so, it follows that the receipts by the assessees during the accounting year were revenue receipts and, therefore, liable to be included in their assessable income. We therefore hold, though the different reasons, that the High Court has rightly answered the questions against the assessees.
| 0 | 2,665 | 445 |
### 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:
distributed in terms of the Second Schedule. Both the funds were divided again into Fund A and Fund B. Fund A was established on behalf of owners of property of which an area of not less than Ac. 100 - 00 was planted and Fund B on behalf of owners who owned an area of less than Ac. 100 - 00."9. In this case, though Mr. Sastri contended to the contrary, as we have pointed out earlier, the whole proceedings were conducted on the basis that there was a scheme embodying the principles of the First Schedule. It was not disputed that the property of the appellants was not planted entirely with high-yielding rubber trees within the meaning of clause 6. If so, the only question is, what was the nature of the payments made.10. Advertising to the First Schedule of the Ordinance, under clause (4) the cesses collected on rubber produced in Penang and rubber exported from the Federation other than Panang were credited to the accounts of the appellants in such proportions corresponding to the amount of rubber produced by them in the period during which the said cesses were collected. Thereafter, the said amounts were paid to the appellants against expenditure actually incurred since 1st January, 1946, by the appellants on the maintenance of the plantations.On what basis the amounts were paid from the fund to the assesses, there is dearth of material. We have to proceed only on the terms of clauses (4) and (5) of the First Schedule and the admissions recorded by the Tribunal. The Tribunal recorded in its order the concessions made by the assessee to the following effect :"The assessee has conceded before us that it did not have any high- yielding rubber trees. So next position is it is based upon expenditure incurred after 1st January, 1946. It is also admitted that he has claimed such expenses and had them allowed. But these expenses, we find from the records, are based on the production and not on actual expenses shown as having been incurred by the assessee. So it will be difficult, in our opinion, to hold that this is a reimbursement of any expenditure outlay. The assessee might have incurred more or less than the expenses reimbursed to it on the basis of production."11. The following facts therefore emerge. The assessees owned rubber plantations before 1st January, 1946; the assessees being only planters did not pay any duty for rubber exported; the cess or cesses were collected only on rubber produced in Penang and on rubber exported from the Federation other than Penang; the amounts were credited against the appellants corresponding to the amount of rubber produced by them and payments were made from the said amounts to the assessees against expenditure incurred on the maintenance of the plantations.12. The High Court held the said payments were revenue receipts on the following reasoning :"It is perfectly clear that the source of the amounts was the production or the export of the rubber itself by the owners of the plantations. If the money had been paid over as a deduction or an abatement of duty at the stage of production or export, it would not be possible to urge, as the assessees purport to do, that it was anything other than a trading receipt. The mere fact that the statue intervened, collected all of these amounts together in the shape of a fund in which the sums were undeniably earmarked to each and every one of the plantation owners and made payable on the fulfillment of certain conditions does not affect the character of the source of the receipt. It would still remain a trading receipt and the condition that the sums should not be utilised or were to be paid against the sums expended for replanting would not affect the nature of the receipt itself."13. Briefly stated, the basis of the High Courts judgment is that the assessees contributed to the Fund by paying duty on the export of rubber and therefore the repayment made to them from out of the Fund must be correlated to the production of rubber. It was clear from the facts narrated above that the assessees were only partners and they were not exporters and therefore they did not pay any duty under the Ordinance to the Government. Mr. Sastri, the learned counsel for the revenue, did not support the principle accepted by the High Court that the source of payment was material and not the nature of expenditure. Indeed his argument was contrariwise, namely, that the expenditure was revenue expenditure and therefore the amounts paid to recoup it partook of that character.14. The decision in Higgs v. Wrightson is rather apposite. There the appellant was a dairy farmer, the greater part of whose land was, before the war, permanent pasture. Under the Agricultural Development Act, 1939, and the Agriculture (Miscellaneous War Provisions) Act, 1940, he received grants in respect of the ploughing and bringing into a state of cleanliness and fertility land previously under grass for a period of seven years or more. The court held that the ploughing grant was a revenue receipt. Macnaghten J. observed :"Since the amount of the grant depends on the area ploughed, it would seem to be a grant towards the expense of the ploughing...."15. So too, in the instant case, the payments to the planters were made against the expenditure incurred for maintaining the rubber plantations.16. Having regard to the aforesaid facts, we must hold that the amounts from the fund earmarked for the appellants on the basis of the rubber produced by them were paid against the expenditure incurred by them for maintaining the rubber plantation and producing the rubber. If so, it follows that the receipts by the assessees during the accounting year were revenue receipts and, therefore, liable to be included in their assessable income. We therefore hold, though the different reasons, that the High Court has rightly answered the questions against the assessees.
### Response:
0
### Explanation:
At the outset, it would be convenient to clear the ground. Throughout the proceedings, it was assumed that a scheme was framed embodying the principles laid down in the first Schedule to the Ordinance and that the payments were made in terms of the scheme. We cannot, therefore, permit the learned counsel for the revenue to change his ground and base his case on the Second Schedule. It may also be made clear that the assessees were only planters and were maintaining the plantations : they were not carrying on any business in rubber; the said amounts in their hands were assessed as income derived from plantations.In this case, though Mr. Sastri contended to the contrary, as we have pointed out earlier, the whole proceedings were conducted on the basis that there was a scheme embodying the principles of the First Schedule. It was not disputed that the property of the appellants was not planted entirely withrubber trees within the meaning of clause 6.Briefly stated, the basis of the High Courts judgment is that the assessees contributed to the Fund by paying duty on the export of rubber and therefore the repayment made to them from out of the Fund must be correlated to the production of rubber. It was clear from the facts narrated above that the assessees were only partners and they were not exporters and therefore they did not pay any duty under the Ordinance to the Government. Mr. Sastri, the learned counsel for the revenue, did not support the principle accepted by the High Court that the source of payment was material and not the nature of expenditure. Indeed his argument was contrariwise, namely, that the expenditure was revenue expenditure and therefore the amounts paid to recoup it partook of that character.So too, in the instant case, the payments to the planters were made against the expenditure incurred for maintaining the rubber plantations.16. Having regard to the aforesaid facts, we must hold that the amounts from the fund earmarked for the appellants on the basis of the rubber produced by them were paid against the expenditure incurred by them for maintaining the rubber plantation and producing the rubber. If so, it follows that the receipts by the assessees during the accounting year were revenue receipts and, therefore, liable to be included in their assessable income. We therefore hold, though the different reasons, that the High Court has rightly answered the questions against the assessees.
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THE STATE OF GUJARAT Vs. PWD AND FOREST EMPLOYEES UNION
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department of Government will have great difficulty in adhering to it. The pay scale mentioned in Serial Nos. 3, 4, 5 and 6 cannot be applied across the board. (ii) The old Pension Scheme has been scrapped by the Government and Contributory Pension Fund (CPF) Scheme/New Pension Scheme (NPS) has been introduced with effect from April 01, 2005. Therefore, CPF Scheme/NPS has been made applicable under the GR dated September 15, 2014, and the benefits of the same are being granted to the workers of the respondent union. (iii) Similarly, the old General Provident Fund (GPF) Scheme has been scrapped by the Government and CPF Scheme has been introduced with effect from April 01, 2005. Therefore, CPF Scheme has been made applicable, and the benefits of the same are being granted to the workers of the respondent union. (iv) The worker is given benefit of past services considering the earlier period on which he worked for more than 240 days in a year. (v) The GR dated October 17, 1988 provides for 14 days of casual leave including 2 days of voluntary leave/optional leave. However, due to inadvertent translation errors, the judgment passed by this Court directed 14 days of casual leave in addition to 2 days of voluntary leave/optional leave. Therefore, the GR dated September 15, 2014 has incorporated the two days of voluntary leave/restricted leave and 12 days of casual leave which is applicable to all Government employees.13. Having regard to the above, we are confining our discussion to the aforesaid exceptions taken by the appellant. In the first instance, it is pointed out by the appellant that even if the respondents become permanent, they would be entitled to be fitted in the job description in terms of the Rules. What is emphasised is that even after regularisation, their pay scales cannot be more than the pay which is given to the employees who are taken on permanent basis. This appears to be a very sound argument. The only plea was that whatever is given to such employees in other departments, same benefit be extended to the respondents as well. It is difficult to countenance this submission which we find to be legally impermissible. That is hardly any justifiable response to rebut the same. It is to be kept in mind that members of respondent union were all engaged on daily wage basis. No doubt, the appellant Government decided to confer certain benefits upon these daily wage workers depending upon the number of years of service they put in. Judgment dated July 09, 2013 proceeds on that basis. Under certain circumstances, namely, on completion of specified number of years of service on daily wage basis, these daily wage workers are entitled to become permanent. On attaining the status of permanency/regular employees, they become at par with those employees who were appointed on permanent basis from beginning, after undergoing the proper selection procedure on proving their merit. These daily wagers cannot be given the pay scales which are even better than the pay scales given to regularly appointed employees. The Rules are statutory in nature which have been framed in exercise of powers conferred by the proviso to Article 309 of the Constitution. On becoming permanent, such daily wagers can, at the most, claim that they be fitted in the job descriptions in terms of the said pay rules and their pay be fixed accordingly. The appellant is ready to do that. We, therefore, accept the plea mentioned in exception (i) above. 14. Insofar as plea at paras (ii) and (iii) is concerned, the appellant intends to deny the benefit of GPF on the ground that w.e.f. April 01, 2005, CPF Scheme/NPS has been introduced. However, on that basis, all such employees cannot be denied the benefit of GPF. The earlier pension scheme continues to annued to the benefit of those who enter the service before April 01, 2005. Therefore, all those daily wagers who become entitled to get the status of regular/permanent employees before April 01, 2005 has to be given the benefit of GPF. To put it otherwise, April 01, 2005 would be treated as cut-off date. All those persons who would be entitled to regularisation/permanent status prior to April 01, 2005 shall be given the benefit of earlier scheme i.e. GPF. However, those who attain this status after April 01, 2005 shall be governed by CPF Scheme/NPS. 15. Insofar as exception (iv) mentioned by the appellant is concerned, there appears to be some merit therein. For counting the number of years for giving benefit to the workers in terms of judgment dated July 09, 2013, only those years would be taken into consideration wherein these workers had worked for 240 days or more in a year i.e. in consonance with the GR dated October 17, 1988. Furthermore, there is no direction in the judgment of this Court to the effect that the period of service of 240 days in a year should be only in the initial year and not thereafter. In fact, when the learned senior counsel for the respondents were confronted with the aforesaid position, they conceded to this position. 16. Insofar as exception (v) noted above is concerned, it is not in dispute that regular employees are entitled to 12 days of casual leave in a year i.e. applicable to all Government employees and the respondents could not dispute this. The respondents workers who have been working on daily wage basis cannot be given casual leave which is more than the entitlement extended to regular Government employees. We accept the plea of the appellant that GR dated October 17, 1988 which provides for 14 days casual leave including 2 days of voluntary/optional leave is the result of inadvertent transaction error. Even otherwise, as pointed out above, the casual leave for daily wagers cannot be more than the regular Government employees. We, therefore, hold that the respondents employees shall be entitled to 12 days of casual leave and 2 days of voluntary leave/restricted leave.
|
1[ds]13. Having regard to the above, we are confining our discussion to the aforesaid exceptions taken by the appellantThis appears to be a very sound argument. The only plea was that whatever is given to such employees in other departments, same benefit be extended to the respondents as well. It is difficult to countenance this submission which we find to be legally impermissible. That is hardly any justifiable response to rebut the same. It is to be kept in mind that members of respondent union were all engaged on daily wage basis. No doubt, the appellant Government decided to confer certain benefits upon these daily wage workers depending upon the number of years of service they put in. Judgment dated July 09, 2013 proceeds on that basis. Under certain circumstances, namely, on completion of specified number of years of service on daily wage basis, these daily wage workers are entitled to become permanent. On attaining the status of permanency/regular employees, they become at par with those employees who were appointed on permanent basis from beginning, after undergoing the proper selection procedure on proving their merit. These daily wagers cannot be given the pay scales which are even better than the pay scales given to regularly appointed employees. The Rules are statutory in nature which have been framed in exercise of powers conferred by the proviso to Article 309 of the Constitution. On becoming permanent, such daily wagers can, at the most, claim that they be fitted in the job descriptions in terms of the said pay rules and their pay be fixed accordingly. The appellant is ready to do that. We, therefore, accept the plea mentioned in exception (i) above14. Insofar as plea at paras (ii) and (iii) is concerned, the appellant intends to deny the benefit of GPF on the ground that w.e.f. April 01, 2005, CPF Scheme/NPS has been introduced. However, on that basis, all such employees cannot be denied the benefit of GPF. The earlier pension scheme continues to annued to the benefit of those who enter the service before April 01, 2005. Therefore, all those daily wagers who become entitled to get the status of regular/permanent employees before April 01, 2005 has to be given the benefit of GPF. To put it otherwise, April 01, 2005 would be treated as cut-off date. All those persons who would be entitled to regularisation/permanent status prior to April 01, 2005 shall be given the benefit of earlier scheme i.e. GPF. However, those who attain this status after April 01, 2005 shall be governed by CPF Scheme/NPS.15. Insofar as exception (iv) mentioned by the appellant is concerned, there appears to be some merit therein. For counting the number of years for giving benefit to the workers in terms of judgment dated July 09, 2013, only those years would be taken into consideration wherein these workers had worked for 240 days or more in a year i.e. in consonance with the GR dated October 17, 1988. Furthermore, there is no direction in the judgment of this Court to the effect that the period of service of 240 days in a year should be only in the initial year and not thereafter. In fact, when the learned senior counsel for the respondents were confronted with the aforesaid position, they conceded to this position16. Insofar as exception (v) noted above is concerned, it is not in dispute that regular employees are entitled to 12 days of casual leave in a year i.e. applicable to all Government employees and the respondents could not dispute this. The respondents workers who have been working on daily wage basis cannot be given casual leave which is more than the entitlement extended to regular Government employees. We accept the plea of the appellant that GR dated October 17, 1988 which provides for 14 days casual leave including 2 days of voluntary/optional leave is the result of inadvertent transaction error. Even otherwise, as pointed out above, the casual leave for daily wagers cannot be more than the regular Government employees. We, therefore, hold that the respondents employees shall be entitled to 12 days of casual leave and 2 days of voluntary leave/restricted leave.
| 1 | 3,548 | 787 |
### 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:
department of Government will have great difficulty in adhering to it. The pay scale mentioned in Serial Nos. 3, 4, 5 and 6 cannot be applied across the board. (ii) The old Pension Scheme has been scrapped by the Government and Contributory Pension Fund (CPF) Scheme/New Pension Scheme (NPS) has been introduced with effect from April 01, 2005. Therefore, CPF Scheme/NPS has been made applicable under the GR dated September 15, 2014, and the benefits of the same are being granted to the workers of the respondent union. (iii) Similarly, the old General Provident Fund (GPF) Scheme has been scrapped by the Government and CPF Scheme has been introduced with effect from April 01, 2005. Therefore, CPF Scheme has been made applicable, and the benefits of the same are being granted to the workers of the respondent union. (iv) The worker is given benefit of past services considering the earlier period on which he worked for more than 240 days in a year. (v) The GR dated October 17, 1988 provides for 14 days of casual leave including 2 days of voluntary leave/optional leave. However, due to inadvertent translation errors, the judgment passed by this Court directed 14 days of casual leave in addition to 2 days of voluntary leave/optional leave. Therefore, the GR dated September 15, 2014 has incorporated the two days of voluntary leave/restricted leave and 12 days of casual leave which is applicable to all Government employees.13. Having regard to the above, we are confining our discussion to the aforesaid exceptions taken by the appellant. In the first instance, it is pointed out by the appellant that even if the respondents become permanent, they would be entitled to be fitted in the job description in terms of the Rules. What is emphasised is that even after regularisation, their pay scales cannot be more than the pay which is given to the employees who are taken on permanent basis. This appears to be a very sound argument. The only plea was that whatever is given to such employees in other departments, same benefit be extended to the respondents as well. It is difficult to countenance this submission which we find to be legally impermissible. That is hardly any justifiable response to rebut the same. It is to be kept in mind that members of respondent union were all engaged on daily wage basis. No doubt, the appellant Government decided to confer certain benefits upon these daily wage workers depending upon the number of years of service they put in. Judgment dated July 09, 2013 proceeds on that basis. Under certain circumstances, namely, on completion of specified number of years of service on daily wage basis, these daily wage workers are entitled to become permanent. On attaining the status of permanency/regular employees, they become at par with those employees who were appointed on permanent basis from beginning, after undergoing the proper selection procedure on proving their merit. These daily wagers cannot be given the pay scales which are even better than the pay scales given to regularly appointed employees. The Rules are statutory in nature which have been framed in exercise of powers conferred by the proviso to Article 309 of the Constitution. On becoming permanent, such daily wagers can, at the most, claim that they be fitted in the job descriptions in terms of the said pay rules and their pay be fixed accordingly. The appellant is ready to do that. We, therefore, accept the plea mentioned in exception (i) above. 14. Insofar as plea at paras (ii) and (iii) is concerned, the appellant intends to deny the benefit of GPF on the ground that w.e.f. April 01, 2005, CPF Scheme/NPS has been introduced. However, on that basis, all such employees cannot be denied the benefit of GPF. The earlier pension scheme continues to annued to the benefit of those who enter the service before April 01, 2005. Therefore, all those daily wagers who become entitled to get the status of regular/permanent employees before April 01, 2005 has to be given the benefit of GPF. To put it otherwise, April 01, 2005 would be treated as cut-off date. All those persons who would be entitled to regularisation/permanent status prior to April 01, 2005 shall be given the benefit of earlier scheme i.e. GPF. However, those who attain this status after April 01, 2005 shall be governed by CPF Scheme/NPS. 15. Insofar as exception (iv) mentioned by the appellant is concerned, there appears to be some merit therein. For counting the number of years for giving benefit to the workers in terms of judgment dated July 09, 2013, only those years would be taken into consideration wherein these workers had worked for 240 days or more in a year i.e. in consonance with the GR dated October 17, 1988. Furthermore, there is no direction in the judgment of this Court to the effect that the period of service of 240 days in a year should be only in the initial year and not thereafter. In fact, when the learned senior counsel for the respondents were confronted with the aforesaid position, they conceded to this position. 16. Insofar as exception (v) noted above is concerned, it is not in dispute that regular employees are entitled to 12 days of casual leave in a year i.e. applicable to all Government employees and the respondents could not dispute this. The respondents workers who have been working on daily wage basis cannot be given casual leave which is more than the entitlement extended to regular Government employees. We accept the plea of the appellant that GR dated October 17, 1988 which provides for 14 days casual leave including 2 days of voluntary/optional leave is the result of inadvertent transaction error. Even otherwise, as pointed out above, the casual leave for daily wagers cannot be more than the regular Government employees. We, therefore, hold that the respondents employees shall be entitled to 12 days of casual leave and 2 days of voluntary leave/restricted leave.
### Response:
1
### Explanation:
13. Having regard to the above, we are confining our discussion to the aforesaid exceptions taken by the appellantThis appears to be a very sound argument. The only plea was that whatever is given to such employees in other departments, same benefit be extended to the respondents as well. It is difficult to countenance this submission which we find to be legally impermissible. That is hardly any justifiable response to rebut the same. It is to be kept in mind that members of respondent union were all engaged on daily wage basis. No doubt, the appellant Government decided to confer certain benefits upon these daily wage workers depending upon the number of years of service they put in. Judgment dated July 09, 2013 proceeds on that basis. Under certain circumstances, namely, on completion of specified number of years of service on daily wage basis, these daily wage workers are entitled to become permanent. On attaining the status of permanency/regular employees, they become at par with those employees who were appointed on permanent basis from beginning, after undergoing the proper selection procedure on proving their merit. These daily wagers cannot be given the pay scales which are even better than the pay scales given to regularly appointed employees. The Rules are statutory in nature which have been framed in exercise of powers conferred by the proviso to Article 309 of the Constitution. On becoming permanent, such daily wagers can, at the most, claim that they be fitted in the job descriptions in terms of the said pay rules and their pay be fixed accordingly. The appellant is ready to do that. We, therefore, accept the plea mentioned in exception (i) above14. Insofar as plea at paras (ii) and (iii) is concerned, the appellant intends to deny the benefit of GPF on the ground that w.e.f. April 01, 2005, CPF Scheme/NPS has been introduced. However, on that basis, all such employees cannot be denied the benefit of GPF. The earlier pension scheme continues to annued to the benefit of those who enter the service before April 01, 2005. Therefore, all those daily wagers who become entitled to get the status of regular/permanent employees before April 01, 2005 has to be given the benefit of GPF. To put it otherwise, April 01, 2005 would be treated as cut-off date. All those persons who would be entitled to regularisation/permanent status prior to April 01, 2005 shall be given the benefit of earlier scheme i.e. GPF. However, those who attain this status after April 01, 2005 shall be governed by CPF Scheme/NPS.15. Insofar as exception (iv) mentioned by the appellant is concerned, there appears to be some merit therein. For counting the number of years for giving benefit to the workers in terms of judgment dated July 09, 2013, only those years would be taken into consideration wherein these workers had worked for 240 days or more in a year i.e. in consonance with the GR dated October 17, 1988. Furthermore, there is no direction in the judgment of this Court to the effect that the period of service of 240 days in a year should be only in the initial year and not thereafter. In fact, when the learned senior counsel for the respondents were confronted with the aforesaid position, they conceded to this position16. Insofar as exception (v) noted above is concerned, it is not in dispute that regular employees are entitled to 12 days of casual leave in a year i.e. applicable to all Government employees and the respondents could not dispute this. The respondents workers who have been working on daily wage basis cannot be given casual leave which is more than the entitlement extended to regular Government employees. We accept the plea of the appellant that GR dated October 17, 1988 which provides for 14 days casual leave including 2 days of voluntary/optional leave is the result of inadvertent transaction error. Even otherwise, as pointed out above, the casual leave for daily wagers cannot be more than the regular Government employees. We, therefore, hold that the respondents employees shall be entitled to 12 days of casual leave and 2 days of voluntary leave/restricted leave.
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Humanity Vs. State Of West Bengal
|
below:- "...Every action/decision of the State and/or its agencies/instrumentalities to give largesse or confer benefit must be founded on a sound, transparent, discernible and well defined policy, which shall be made known to the public by publication in the Official Gazette and other recognized modes of publicity and such policy must be implemented/executed by adopting a non- discriminatory or non-arbitrary method irrespective of the class or category of persons proposed to be benefited by the policy. The distribution of largesse like allotment of land, grant of quota, permit licence etc. by the State and its agencies/instrumentalities should always be done in a fair and equitable manner and the element of favouritism or nepotism shall not influence the exercise of discretion, if any, conferred upon the particular functionary or officer of the State." 47. The Division Bench of the High Court, with respect, fell into an error by holding that by allotting plot no. CA-222 without open advertisement and public offer the Government action is not illegal or arbitrary. 48. In coming to the said conclusion, the Division Bench relied on two decisions of the Supreme Court rendered in the cases of Sachidanand Pandey & another v. State of West Bengal & others reported in (1987) 2 SCC 295 and Kasturi Lal (supra). This Court however finds that those two cases stand on completely different footing. 49. First of all, in the instant case, the Government initially issued advertisement for allotment of land for setting up of a school and to which the allottee responded. Thereafter, a Committee considered all the applications and decided to allot the land in favour of the allottee. The matter rested there. Then came the letter of the allottee dated 19.1.2009, which has been set out above. It is very surprising that the Division Bench of Calcutta High Court, in paragraph 5 (page 6) and paragraph 21 (page 18) of the impugned judgment, recorded a finding that the allottee was informed by ICSE that for obtaining affiliation for integrated educational institution, land should not be less than 60 kathas. This court fails to understand the basis on which the Division Bench came to such a conclusion. The letter of the allottee dated 19.1.2009 does not even whisper that he was informed of any objection by ICSE. The letter proceeds on a totally different basis. The letter states that after going through the norms of ICSE, it was the allottees own understanding that a plot of more than 60 kathas is necessary to take the school project forward. Therefore, the High Courts recording of fact, that the allottee was `informed by the ICSE of any objection, is not substantiated by any material on record. This is a grave error on the part of the High Court.50. Apart from that, once the Government has initiated the process of advertisement, it cannot jettison the same and allot a new plot to the allottee without any advertisement. This action of the Government is certainly arbitrary and violates the principles of Article 14. 51. Neither in Sachidanand Pandey (supra) nor in Kasturi Lal (supra), any process of advertisement was ever initiated. In Sachidanand Pandey (supra), the main questions raised were issues of ecology and environment. In that case, the court dealt with the question of issuing public auction by explaining that there were direct negotiations with those who came forward to set up five star hotels, to promote the tourism industry in the State. Detailed considerations at different levels proceeded for a very long time before the Taj group of hotels, with sufficient experience in the hotel industry, was selected. In the instant case, the allottee may be a well-known sportsman but does not claim any expertise as an educationist. Here within a month of the application made by the allottee, the allotment was made in a hot haste and without disclosure by the State of any detailed consideration. Thus, the present case stand poles apart from the facts in Sachidanand Pandey (supra). 52. In Kasturi Lal (supra) also, the Governments policy was to set up industries in Jammu and Kashmir, which was not industrially developed and thus entrepreneurs, within the State, were offered encouraging terms for setting up industry. Therefore, in such a situation the State took a policy decision not to invite a tender or go in for advertisement for inviting industrialists from outside the State. It may be noted that at no stage, advertisement was thought of by the State in Kasturi Lal (supra). 53. In the instant case, the impugned allotment of a different and bigger plot by the government in favour of the allottee without any advertisement, when initially advertisement was resorted to, and then it was given up and everything was rushed through in hot haste, is unreasonable and arbitrary, and the High Court was wrong in upholding the same. 54. Before I conclude, I make it clear that I am aware that the allottee is a cricketer of great repute and has led this country to victory in many tournaments, both in India and abroad. I have watched him on the television on many occasions and was delighted to see his glorious cover drives and effortlessly lofted shots over the fence. But as a Judge, I have different duties to discharge. Here I must be objective and eschew my likes and dislikes and render justice to a cause which has come before the Court. 55. For the reasons aforesaid, the order of allotment of plot no. CA-222, Sector-V, Salt Lake (Bidhannagar),Kolkata made in favour of Mr.Sourav Ganguly,the allottee,is quashed. In consequence thereof, the lease deed dated 1.4.09, pursuant to such allotment stands quashed. The allottee must, within two weeks from date, handover the peaceful and vacant possession of plot No. CA-222 measuring 63.04 Kathas in Sector-V, Salt Lake City (Bidhannagar), Kolkata to the concerned department of the State Government. Within two weeks thereafter the State Government must refund to the allottee, by a Cheque, the entire money paid by him for such allotment. 56.
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1[ds]When the Government decided to allot a substantial plot for setting up of a school by private organizations and when on the basis of an advertisement to that effect various organizations responded, the action of the Government was one of granting largesse in as much as land of which the Government is owner and which was allotted is a very scarce and valuable property.25. It has been repeatedly held by this court that in the matter of granting largesse, Government has to act fairly and without even any semblance of discrimination. Law on this subject has been very clearly laid down by this court in the case of Ramana Dayaram Shetty v. International Airport Authority of India and Others reported in 1979 (3) SCC 489. A three- Judge Bench in the said decision has recognized that the Government, in a welfare State, is in a position of distributing largesse in a large measure and in doing so the Government cannot act at its pleasure. This court perusing the new jurisprudential theory of Professor Reich in his article on the "The New Property" (73 Yale Law Journal 733) accepted the following dictum containedgovernment action be based on standards that are not arbitrary andGovernment initially issued advertisement for allotment of land for setting up of a school and to which the allottee responded. Thereafter, a Committee considered all the applications and decided to allot the land in favour of the allottee. The matter rested there. Then came the letter of the allottee dated 19.1.2009, which has been set out above. It is very surprising that the Division Bench of Calcutta High Court, in paragraph 5 (page 6) and paragraph 21 (page 18) of the impugned judgment, recorded a finding that the allottee was informed by ICSE that for obtaining affiliation for integrated educational institution, land should not be less than 60 kathas. This court fails to understand the basis on which the Division Bench came to such a conclusion. The letter of the allottee dated 19.1.2009 does not even whisper that he was informed of any objection by ICSE. The letter proceeds on a totally different basis. The letter states that after going through the norms of ICSE, it was the allottees own understanding that a plot of more than 60 kathas is necessary to take the school project forward. Therefore, the High Courts recording of fact, that the allottee was `informed by the ICSE of any objection, is not substantiated by any material on record. This is a grave error on the part of the High Court.50. Apart from that, once the Government has initiated the process of advertisement, it cannot jettison the same and allot a new plot to the allottee without any advertisement. This action of the Government is certainly arbitrary and violates the principles of Articleorder of allotment of plot no. CA-222, Sector-V, Salt Lake (Bidhannagar),Kolkata made in favour of Mr.Sourav Ganguly,the allottee,is quashed. In consequence thereof, the lease deed dated 1.4.09, pursuant to such allotment stands quashed. The allottee must, within two weeks from date, handover the peaceful and vacant possession of plot No. CA-222 measuring 63.04 Kathas in Sector-V, Salt Lake City (Bidhannagar), Kolkata to the concerned department of the State Government. Within two weeks thereafter the State Government must refund to the allottee, by a Cheque, the entire money paid by him for such allotment.
| 1 | 5,444 | 634 |
### 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:
below:- "...Every action/decision of the State and/or its agencies/instrumentalities to give largesse or confer benefit must be founded on a sound, transparent, discernible and well defined policy, which shall be made known to the public by publication in the Official Gazette and other recognized modes of publicity and such policy must be implemented/executed by adopting a non- discriminatory or non-arbitrary method irrespective of the class or category of persons proposed to be benefited by the policy. The distribution of largesse like allotment of land, grant of quota, permit licence etc. by the State and its agencies/instrumentalities should always be done in a fair and equitable manner and the element of favouritism or nepotism shall not influence the exercise of discretion, if any, conferred upon the particular functionary or officer of the State." 47. The Division Bench of the High Court, with respect, fell into an error by holding that by allotting plot no. CA-222 without open advertisement and public offer the Government action is not illegal or arbitrary. 48. In coming to the said conclusion, the Division Bench relied on two decisions of the Supreme Court rendered in the cases of Sachidanand Pandey & another v. State of West Bengal & others reported in (1987) 2 SCC 295 and Kasturi Lal (supra). This Court however finds that those two cases stand on completely different footing. 49. First of all, in the instant case, the Government initially issued advertisement for allotment of land for setting up of a school and to which the allottee responded. Thereafter, a Committee considered all the applications and decided to allot the land in favour of the allottee. The matter rested there. Then came the letter of the allottee dated 19.1.2009, which has been set out above. It is very surprising that the Division Bench of Calcutta High Court, in paragraph 5 (page 6) and paragraph 21 (page 18) of the impugned judgment, recorded a finding that the allottee was informed by ICSE that for obtaining affiliation for integrated educational institution, land should not be less than 60 kathas. This court fails to understand the basis on which the Division Bench came to such a conclusion. The letter of the allottee dated 19.1.2009 does not even whisper that he was informed of any objection by ICSE. The letter proceeds on a totally different basis. The letter states that after going through the norms of ICSE, it was the allottees own understanding that a plot of more than 60 kathas is necessary to take the school project forward. Therefore, the High Courts recording of fact, that the allottee was `informed by the ICSE of any objection, is not substantiated by any material on record. This is a grave error on the part of the High Court.50. Apart from that, once the Government has initiated the process of advertisement, it cannot jettison the same and allot a new plot to the allottee without any advertisement. This action of the Government is certainly arbitrary and violates the principles of Article 14. 51. Neither in Sachidanand Pandey (supra) nor in Kasturi Lal (supra), any process of advertisement was ever initiated. In Sachidanand Pandey (supra), the main questions raised were issues of ecology and environment. In that case, the court dealt with the question of issuing public auction by explaining that there were direct negotiations with those who came forward to set up five star hotels, to promote the tourism industry in the State. Detailed considerations at different levels proceeded for a very long time before the Taj group of hotels, with sufficient experience in the hotel industry, was selected. In the instant case, the allottee may be a well-known sportsman but does not claim any expertise as an educationist. Here within a month of the application made by the allottee, the allotment was made in a hot haste and without disclosure by the State of any detailed consideration. Thus, the present case stand poles apart from the facts in Sachidanand Pandey (supra). 52. In Kasturi Lal (supra) also, the Governments policy was to set up industries in Jammu and Kashmir, which was not industrially developed and thus entrepreneurs, within the State, were offered encouraging terms for setting up industry. Therefore, in such a situation the State took a policy decision not to invite a tender or go in for advertisement for inviting industrialists from outside the State. It may be noted that at no stage, advertisement was thought of by the State in Kasturi Lal (supra). 53. In the instant case, the impugned allotment of a different and bigger plot by the government in favour of the allottee without any advertisement, when initially advertisement was resorted to, and then it was given up and everything was rushed through in hot haste, is unreasonable and arbitrary, and the High Court was wrong in upholding the same. 54. Before I conclude, I make it clear that I am aware that the allottee is a cricketer of great repute and has led this country to victory in many tournaments, both in India and abroad. I have watched him on the television on many occasions and was delighted to see his glorious cover drives and effortlessly lofted shots over the fence. But as a Judge, I have different duties to discharge. Here I must be objective and eschew my likes and dislikes and render justice to a cause which has come before the Court. 55. For the reasons aforesaid, the order of allotment of plot no. CA-222, Sector-V, Salt Lake (Bidhannagar),Kolkata made in favour of Mr.Sourav Ganguly,the allottee,is quashed. In consequence thereof, the lease deed dated 1.4.09, pursuant to such allotment stands quashed. The allottee must, within two weeks from date, handover the peaceful and vacant possession of plot No. CA-222 measuring 63.04 Kathas in Sector-V, Salt Lake City (Bidhannagar), Kolkata to the concerned department of the State Government. Within two weeks thereafter the State Government must refund to the allottee, by a Cheque, the entire money paid by him for such allotment. 56.
### Response:
1
### Explanation:
When the Government decided to allot a substantial plot for setting up of a school by private organizations and when on the basis of an advertisement to that effect various organizations responded, the action of the Government was one of granting largesse in as much as land of which the Government is owner and which was allotted is a very scarce and valuable property.25. It has been repeatedly held by this court that in the matter of granting largesse, Government has to act fairly and without even any semblance of discrimination. Law on this subject has been very clearly laid down by this court in the case of Ramana Dayaram Shetty v. International Airport Authority of India and Others reported in 1979 (3) SCC 489. A three- Judge Bench in the said decision has recognized that the Government, in a welfare State, is in a position of distributing largesse in a large measure and in doing so the Government cannot act at its pleasure. This court perusing the new jurisprudential theory of Professor Reich in his article on the "The New Property" (73 Yale Law Journal 733) accepted the following dictum containedgovernment action be based on standards that are not arbitrary andGovernment initially issued advertisement for allotment of land for setting up of a school and to which the allottee responded. Thereafter, a Committee considered all the applications and decided to allot the land in favour of the allottee. The matter rested there. Then came the letter of the allottee dated 19.1.2009, which has been set out above. It is very surprising that the Division Bench of Calcutta High Court, in paragraph 5 (page 6) and paragraph 21 (page 18) of the impugned judgment, recorded a finding that the allottee was informed by ICSE that for obtaining affiliation for integrated educational institution, land should not be less than 60 kathas. This court fails to understand the basis on which the Division Bench came to such a conclusion. The letter of the allottee dated 19.1.2009 does not even whisper that he was informed of any objection by ICSE. The letter proceeds on a totally different basis. The letter states that after going through the norms of ICSE, it was the allottees own understanding that a plot of more than 60 kathas is necessary to take the school project forward. Therefore, the High Courts recording of fact, that the allottee was `informed by the ICSE of any objection, is not substantiated by any material on record. This is a grave error on the part of the High Court.50. Apart from that, once the Government has initiated the process of advertisement, it cannot jettison the same and allot a new plot to the allottee without any advertisement. This action of the Government is certainly arbitrary and violates the principles of Articleorder of allotment of plot no. CA-222, Sector-V, Salt Lake (Bidhannagar),Kolkata made in favour of Mr.Sourav Ganguly,the allottee,is quashed. In consequence thereof, the lease deed dated 1.4.09, pursuant to such allotment stands quashed. The allottee must, within two weeks from date, handover the peaceful and vacant possession of plot No. CA-222 measuring 63.04 Kathas in Sector-V, Salt Lake City (Bidhannagar), Kolkata to the concerned department of the State Government. Within two weeks thereafter the State Government must refund to the allottee, by a Cheque, the entire money paid by him for such allotment.
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Jaysing S/O Bhimrao Ghuge & Others Vs. Motiram Ukanda Khillare & Others
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ORAL JUDGMENT A.P. Shah, J.The point which arises for consideration in this petition is whether the resolution of no confidence passed against the respondent No.1 in the meeting dated 19.01.2000 is legal and valid.2.Few facts relevant for the decision are that the petitioners and respondent Nos.1 to 3 are elected members of Gram Panchayat of Sukanda. The respondent No.1 was elected as Sarpanch of the Gram Panchayat. A motion for no confidence against the Sarpanch was moved by the petitioners by submitting requisition to the Tahsildar of Malegaon on 12.01.2000. Pursuant to the requisition, the Tahsildar convened the special meeting of the Gram Panchayat on 19.01.2000. The motion was passed by majority of four versus three and it was accordingly recorded in the proceedings book. The respondent No.1, Sarpanch moved an appeal under Section 35 (3B) of Bombay Village Panchayats Act, 1958 before the Additional Collector, Washim, who held that the meeting was not convened and held within seven days as required by the provisions of Section 35(2) of the Bombay Village Panchayats Act, 1958 and, therefore, the motion of no confidence violates section 35(2). The appeal preferred by the petitioners before the Additional Commissioner, Amravati Division, Amravati under Section 35 (3C) came to be dismissed. Aggrieved by the order of the Additional Commissioner, the petitioners have approached this Court under Article 226 of the Constitution of India.3.Section 35 of the Act, inter alia, provides as follows :-"S. 35. Motion of no confidence. -((1) A motion of no confidence may be moved by not less than (one-third) of the total number of the members who are for the time being entitled to sit and vote at any meeting of the panchayat against the Sarpanch or the Upa-Sarpanch after giving such notice thereof to the Tahsildar as may be prescribed. (Such notice once given shall not be withdrawn).(2) Within seven days from the date of receipt by him of the notice under sub-section (1), the Tahsildar shall convene a special meeting of the panchayat for considering the motion of no confidence at the office of the panchayat at a time to be appointed by him and he shall preside over such meeting. At such special meeting, the Sarpanch or the Upa-Sarpanch against whom the motion of no confidence is moved shall have a right to speak or otherwise to take part in the proceedings at the meeting (including the right to vote). ..."It is not disputed before us that the provisions of Section 35(2) are mandatory and the said provisions required the Tahsildar not only to issue the notice to convene the meeting within seven days but also to convene the meeting itself within seven days to deal with the matter pertaining to the no confidence motion in terms of notice issued by him under Section 35(1) of the Act.4.The question is when can the period of 7 days from the date of receipt of the notice be said to have commenced. There is a volume of authorities in England showing that where a particular time is given from a certain date within which an act is to be done, the day on that date is to be excluded. (See Goldsmiths Company .v. West Metropolitan Railway Company (1904) 1 KB 1). This rule was followed in Cartwright .v. Mac Cormack ((1963) 1 All ER 11 at page 13) where the expression "fifteen days from the date of commencement of the policy" sin a cover note issued by an insurance company was construed as excluding the first date and the cover note to commence at midnight of that day, and also in Marren .v. Dawson Bentley and Co. Ltd. ((1961) 2 QB 135), a case for compensation for injuries received in the course of employment, where for the purpose of computing the period of limitation, the date of the accident, being the date of the cause of action, was excluded. In case of Haru Das .v. State of W.B. (AIR 1972 SC 1293 ) following the said English decisions, the Supreme Court has held that in computing the period of three months from the date of detention before the expiration of which the order or decision for confirming the detention order and continuation of the detention had to be made, the date of commencement of detention must be excluded. There is no reason why the aforesaid rule of interpretation followed consistently and for so long should not be applied here.5.It will be also useful to refer to section 9 of the Bombay General Clauses Act which deals with the commencement and termination of time. It provides that it shall be sufficient for the purpose of excluding the first in a series of days or any other period of time, to use the word "from" and, for the purpose of including the last in a series of days or any other period of time, to use the word "to". This means if the word "from" is used. the first day is to be excluded and if the word "to" is used, the last day is to be included. This section applies to all State Acts made after the commencement of Bombay General Clauses Act. In the instant case, the meeting was required to be held within seven days from the date of receipt of notice under sub-section (1) of Section 35. The requisition was received by the Tahsildar on 12.01.2000 and that day will have to be excluded and thus the meeting which was held on 19.01.2000 was within the period of seven days as provided in 35(1). Therefore, the authorities below were clearly in error that there was breach of Section 35(2). No other infirmity or illegality is pointed out in respect of the said meeting.
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1[ds]n is when can the period of 7 days from the date of receipt of the notice be said to have commenced.There is a volume of authorities in England showing that where a particular time is given from a certain date within which an act is to be done, the day on that date is to be excluded. (See Goldsmiths Company .v. West Metropolitan Railway Company (1904) 1 KB 1). This rule was followed in Cartwright .v. Mac Cormack ((1963) 1 All ER 11 at page 13) where the expression "fifteen days from the date of commencement of the policy" sin a cover note issued by an insurance company was construed as excluding the first date and the cover note to commence at midnight of that day, and also in Marren .v. Dawson Bentley and Co. Ltd. ((1961) 2 QB 135), a case for compensation for injuries received in the course of employment, where for the purpose of computing the period of limitation, the date of the accident, being the date of the cause of action, was excluded. In case of Haru Das .v. State of W.B. (AIR 1972 SC 1293 ) following the said English decisions, the Supreme Court has held that in computing the period of three months from the date of detention before the expiration of which the order or decision for confirming the detention order and continuation of the detention had to be made, the date of commencement of detention must be excluded. There is no reason why the aforesaid rule of interpretation followed consistently and for so long should not be applied here.5.It will be also useful to refer to section 9 of the Bombay General Clauses Act which deals with the commencement and termination of time. It provides that it shall be sufficient for the purpose of excluding the first in a series of days or any other period of time, to use the word "from" and, for the purpose of including the last in a series of days or any other period of time, to use the word "to". This means if the word "from" is used. the first day is to be excluded and if the word "to" is used, the last day is to be included. This section applies to all State Acts made after the commencement of Bombay General Clauses Act. In the instant case, the meeting was required to be held within seven days from the date of receipt of notice under(1) of Section 35. The requisition was received by the Tahsildar on 12.01.2000 and that day will have to be excluded and thus the meeting which was held on 19.01.2000 was within the period of seven days as provided in 35(1). Therefore, the authorities below were clearly in error that there was breach of Section 35(2). No other infirmity or illegality is pointed out in respect of the said meeting.
| 1 | 1,085 | 551 |
### 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:
ORAL JUDGMENT A.P. Shah, J.The point which arises for consideration in this petition is whether the resolution of no confidence passed against the respondent No.1 in the meeting dated 19.01.2000 is legal and valid.2.Few facts relevant for the decision are that the petitioners and respondent Nos.1 to 3 are elected members of Gram Panchayat of Sukanda. The respondent No.1 was elected as Sarpanch of the Gram Panchayat. A motion for no confidence against the Sarpanch was moved by the petitioners by submitting requisition to the Tahsildar of Malegaon on 12.01.2000. Pursuant to the requisition, the Tahsildar convened the special meeting of the Gram Panchayat on 19.01.2000. The motion was passed by majority of four versus three and it was accordingly recorded in the proceedings book. The respondent No.1, Sarpanch moved an appeal under Section 35 (3B) of Bombay Village Panchayats Act, 1958 before the Additional Collector, Washim, who held that the meeting was not convened and held within seven days as required by the provisions of Section 35(2) of the Bombay Village Panchayats Act, 1958 and, therefore, the motion of no confidence violates section 35(2). The appeal preferred by the petitioners before the Additional Commissioner, Amravati Division, Amravati under Section 35 (3C) came to be dismissed. Aggrieved by the order of the Additional Commissioner, the petitioners have approached this Court under Article 226 of the Constitution of India.3.Section 35 of the Act, inter alia, provides as follows :-"S. 35. Motion of no confidence. -((1) A motion of no confidence may be moved by not less than (one-third) of the total number of the members who are for the time being entitled to sit and vote at any meeting of the panchayat against the Sarpanch or the Upa-Sarpanch after giving such notice thereof to the Tahsildar as may be prescribed. (Such notice once given shall not be withdrawn).(2) Within seven days from the date of receipt by him of the notice under sub-section (1), the Tahsildar shall convene a special meeting of the panchayat for considering the motion of no confidence at the office of the panchayat at a time to be appointed by him and he shall preside over such meeting. At such special meeting, the Sarpanch or the Upa-Sarpanch against whom the motion of no confidence is moved shall have a right to speak or otherwise to take part in the proceedings at the meeting (including the right to vote). ..."It is not disputed before us that the provisions of Section 35(2) are mandatory and the said provisions required the Tahsildar not only to issue the notice to convene the meeting within seven days but also to convene the meeting itself within seven days to deal with the matter pertaining to the no confidence motion in terms of notice issued by him under Section 35(1) of the Act.4.The question is when can the period of 7 days from the date of receipt of the notice be said to have commenced. There is a volume of authorities in England showing that where a particular time is given from a certain date within which an act is to be done, the day on that date is to be excluded. (See Goldsmiths Company .v. West Metropolitan Railway Company (1904) 1 KB 1). This rule was followed in Cartwright .v. Mac Cormack ((1963) 1 All ER 11 at page 13) where the expression "fifteen days from the date of commencement of the policy" sin a cover note issued by an insurance company was construed as excluding the first date and the cover note to commence at midnight of that day, and also in Marren .v. Dawson Bentley and Co. Ltd. ((1961) 2 QB 135), a case for compensation for injuries received in the course of employment, where for the purpose of computing the period of limitation, the date of the accident, being the date of the cause of action, was excluded. In case of Haru Das .v. State of W.B. (AIR 1972 SC 1293 ) following the said English decisions, the Supreme Court has held that in computing the period of three months from the date of detention before the expiration of which the order or decision for confirming the detention order and continuation of the detention had to be made, the date of commencement of detention must be excluded. There is no reason why the aforesaid rule of interpretation followed consistently and for so long should not be applied here.5.It will be also useful to refer to section 9 of the Bombay General Clauses Act which deals with the commencement and termination of time. It provides that it shall be sufficient for the purpose of excluding the first in a series of days or any other period of time, to use the word "from" and, for the purpose of including the last in a series of days or any other period of time, to use the word "to". This means if the word "from" is used. the first day is to be excluded and if the word "to" is used, the last day is to be included. This section applies to all State Acts made after the commencement of Bombay General Clauses Act. In the instant case, the meeting was required to be held within seven days from the date of receipt of notice under sub-section (1) of Section 35. The requisition was received by the Tahsildar on 12.01.2000 and that day will have to be excluded and thus the meeting which was held on 19.01.2000 was within the period of seven days as provided in 35(1). Therefore, the authorities below were clearly in error that there was breach of Section 35(2). No other infirmity or illegality is pointed out in respect of the said meeting.
### Response:
1
### Explanation:
n is when can the period of 7 days from the date of receipt of the notice be said to have commenced.There is a volume of authorities in England showing that where a particular time is given from a certain date within which an act is to be done, the day on that date is to be excluded. (See Goldsmiths Company .v. West Metropolitan Railway Company (1904) 1 KB 1). This rule was followed in Cartwright .v. Mac Cormack ((1963) 1 All ER 11 at page 13) where the expression "fifteen days from the date of commencement of the policy" sin a cover note issued by an insurance company was construed as excluding the first date and the cover note to commence at midnight of that day, and also in Marren .v. Dawson Bentley and Co. Ltd. ((1961) 2 QB 135), a case for compensation for injuries received in the course of employment, where for the purpose of computing the period of limitation, the date of the accident, being the date of the cause of action, was excluded. In case of Haru Das .v. State of W.B. (AIR 1972 SC 1293 ) following the said English decisions, the Supreme Court has held that in computing the period of three months from the date of detention before the expiration of which the order or decision for confirming the detention order and continuation of the detention had to be made, the date of commencement of detention must be excluded. There is no reason why the aforesaid rule of interpretation followed consistently and for so long should not be applied here.5.It will be also useful to refer to section 9 of the Bombay General Clauses Act which deals with the commencement and termination of time. It provides that it shall be sufficient for the purpose of excluding the first in a series of days or any other period of time, to use the word "from" and, for the purpose of including the last in a series of days or any other period of time, to use the word "to". This means if the word "from" is used. the first day is to be excluded and if the word "to" is used, the last day is to be included. This section applies to all State Acts made after the commencement of Bombay General Clauses Act. In the instant case, the meeting was required to be held within seven days from the date of receipt of notice under(1) of Section 35. The requisition was received by the Tahsildar on 12.01.2000 and that day will have to be excluded and thus the meeting which was held on 19.01.2000 was within the period of seven days as provided in 35(1). Therefore, the authorities below were clearly in error that there was breach of Section 35(2). No other infirmity or illegality is pointed out in respect of the said meeting.
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Jagan Nath Sathu Vs. The Union Of India
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in relation to that State. The extracts of the despatches, sent by the petitioner to the foreign newspaper, annexed to the grounds of detention show that they are not only prejudicial to the Government of India vis-_is Pakistan but they are prejudicial to the relations of India with foreign powers in general, the subject of the affairs of the State of Jammu and Kashmir not being a matter of interest solely to Pakistan but also of interest to other foreign powers.12. Coming now to objections made as to the grounds of detention regarding ground No. 1, it was urged that this ground was outside the scope of the order of detention. This ground mentions that the petitioner is engaged in carrying on propaganda against the Government of India and the Government of the State of Jammu and Kashmir in such a manner as to bring these two Government into hatred and contempt. In our opinion it cannot be said that this ground is beyond the scope of the order of detention because the bringing of the Government of India and the Government of the State of Jammu and Kashmir into hatred and contempt does involve the security of India.13. Regarding ground No. 2 it was urged that it does not disclose a single suggestion about the subversive activities of the petitioner, nor does it disclose what portions of the despatches were false, incomplete, misleading or one-sided. It was further pointed out that this ground speaks of the conditions in India in general and the policy of the Government of India in relation to the State of Jammu and Kashmir. What the policy of the Government of India is concerned that State is not stated. All these allegations were so vague that they gave no real opportunity to the petitioner to make a representation. Similarly, concerning grounds 3 and 4 it was urged that the grounds did not disclose what was the cause of India in relation to the State of Jammu and Kashmir. Here again, sufficient particulars were not given to enable the petitioner to make an effective representation to the Advisory Board. In our opinion, none of these contentions has any substance because with the grounds of detention were annexed extracts from the despatches sent by the petitioner to the newspaper "Dawn" published in Pakistan. These extracts gave sufficient particulars to enable the petitioner to make a representation with respect to all matters stated in the grounds of detention.14. Coming now to the submission that the respondents case was heard before the petitioners case and in his absence and that copies of further materials placed before the Advisory Board by the respondent were not supplied to the petitioner, it is necessary to refer to the procedure to be adopted by the Advisory Board under the provisions of the Act, Under S. 9. in every case where a detention order has been made the appropriate Government must within 30 days from the date of detention place before the Advisory Board the grounds, on which the order has been made, and the representation, if any, made by the detenus and, in a case where an order has been made by a officer, also the report by such officer under sub-s. (3) of S. 3. Section 10 sets out the procedure which the Advisory Board must follow when reference has been made to it under S. 9. Section 10(2) states:"The Advisory Board shall, after considering the materials placed before it and, after calling for such further information as it may deem necessary from the appropriate Government or from any person called for the purpose through the appropriate Government or from the person concerned, and if in any particular case it considers it essential so to do or if the person concerned desires to be heard, after hearing him in person submit its report to the appropriate Government within ten weeks from the date of detention".15. It is clear from these provisions that the Advisory Board after considering the materials placed before it under S. 9 can call for further information from the appropriate Government, and that thereafter if in any particular case is considers it essential so to do or if the detenue desires to be heard, after hearing him, submit its report to the appropriate Government. In such a situation the Advisory Board must of necessity obtain further information from the appropriate Government before it hears the detenue. In our opinion, there is nothing in S. 10 which offends against the principles of natural justice, Furthermore, the petition does not assert as a matter of fact that the respondents case was heard in the absence of the petitioner.Indeed, the respondents affidavit does not admit that any such thing happened.16. As for the copies of the further materials placed by the respondent before the Advisory Board not being supplied to the petitioner, it has to be observed that in paragraph 3 of the grounds of detention it was clearly stated that the Central Government considered it against public interest to disclose to the petitioner any facts or particulars as to dates, persons, places, nature of activities and the assistance given by him other than those which had already been mentioned in the grounds of detention. Under Art. 22(6) of the Constitution it is clearly stated that nothing in cl. (5) of that Article shall require the authority making an order of detention to disclose facts which such authority considers to be against public interest to be disclosed. In the present case the authority concerned had declined to disclose in the public interest any facts or particulars as to dates, persons, places, nature of activities and the assistance given by the petitioner other than those which had already been mentioned in the grounds of detention. In such circumstances, it would have been entirely inappropriate for the respondent to supply copies of the further materials placed before the Advisory Board although the Advisory Board may have required further information in order to satisfy itself.
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0[ds]There is, however, a distinction between a country not being regarded as a Foreign State for the purposes of the Constitution and that country being a foreign power for other purposes. The Common-wealth is an Association of Nations each of which has a sovereign status independent of each other in its internal and foreign affairs. They have a sovereign status as complete as that of any nation which is not a member of the Commonwealth. Each member of the Commonwealth can have diplomatic relations with each other and with nations outside the Commonwealth. Indeed, in the matter of sovereign status they are as independent as any nation outside the Commonwealth. It follows, therefore, that in their relations between each other and nations outside the Commonwealth they must be regarded as foreign powers and their affairs as between them are foreign affairs. In our opinion, that which is not concerned with the internal affairs of a member of the Commonwealth, is its external affairs, that is to say, a foreignquestion for decision is whether Pakistan is a foreign power. On a correct interpretation of the meaning of the words "the relations of India with foreign powers" we have no doubt that that Pakistan must be regarded as a foreign power, although that country may be a part of the Commonwealth as India is. It has sovereignty in matters of internal administration and external relations quite independent and disconnected with the sovereignty of India or any other member of the Commonwealth in these respects.Pakistan has its own diplomatic relations with various countries including India. Apart from its membership of the Commonwealth, the independent sovereign status of Pakistan is the same as the sovereign status of any country outside the Commonwealth.It was, however, suggested that the Order made by the Governor General took Pakistan outside the category of a foreign power.In our opinion, this is a fallacious argument because Art. 367(3) itself states that for the purposes of the India Constitution Foreign State means any State other than India but the President, and before the commencement of the Constitution the Governor General of India under Art. 392(3), may by order declare any State not to be a Foreign State for such purposes as may be specified in the Order. In the Order the Governor General declared that every country within the Commonwealth was not a Foreign State for the purposes of the Constitution. In the Constitution of India there are various Articles in which the expression Foreign State appears e.g. Art. 18(2), (3), (4), Art. 19(2), Art. 102(1)(d) and Art. 191(1) (d).It is clear therefore, that under the Order, for the purposes of these Articles or any other Article where the expression "Foreign State" appears, that expression would not cover a country within the Commonwealth unless Parliament enacted otherwise.The Order cannot be brought into aid for the purposes of construing the expression foreign affairs appearing in item 9 of List I of the Seventh Schedule and the expression foreign powers in S. 3 of the Act. These expressions must be construed in the ordinary way giving the words their ordinary meaning. We have no doubt that Pakistan is a foreign power.Under the provisions of the Act the Central Government and the State Government could detain a person who was acting in a manner prejudicial to the relations of India with foreign powers which would include Pakistan. It is to be further remembered that neither in the order of detention nor in the grounds of detention there is any mention of Pakistan specifically. On the contrary, in the grounds of detention, it is clearly stated that the cumulative effect of the petitioners activities was prejudicial to the relations of India with foreign powers in general (vide grounds 3 and 4). The grounds of detention refers to the publication in a foreign newspaper of despatches of news and views relating to the State of Jammu and Kashmir containing false, incomplete, one-sided and misleading information and about the policy of the Government of India in relation to that State. The extracts of the despatches, sent by the petitioner to the foreign newspaper, annexed to the grounds of detention show that they are not only prejudicial to the Government of India vis-_is Pakistan but they are prejudicial to the relations of India with foreign powers in general, the subject of the affairs of the State of Jammu and Kashmir not being a matter of interest solely to Pakistan but also of interest to other foreignour opinion it cannot be said that this ground is beyond the scope of the order of detention because the bringing of the Government of India and the Government of the State of Jammu and Kashmir into hatred and contempt does involve the security ofour opinion, none of these contentions has any substance because with the grounds of detention were annexed extracts from the despatches sent by the petitioner to the newspaper "Dawn" published in Pakistan. These extracts gave sufficient particulars to enable the petitioner to make a representation with respect to all matters stated in the grounds of detention.As for the copies of the further materials placed by the respondent before the Advisory Board not being supplied to the petitioner, it has to be observed that in paragraph 3 of the grounds of detention it was clearly stated that the Central Government considered it against public interest to disclose to the petitioner any facts or particulars as to dates, persons, places, nature of activities and the assistance given by him other than those which had already been mentioned in the grounds of detention. Under Art. 22(6) of the Constitution it is clearly stated that nothing in cl. (5) of that Article shall require the authority making an order of detention to disclose facts which such authority considers to be against public interest to be disclosed. In the present case the authority concerned had declined to disclose in the public interest any facts or particulars as to dates, persons, places, nature of activities and the assistance given by the petitioner other than those which had already been mentioned in the grounds of detention. In such circumstances, it would have been entirely inappropriate for the respondent to supply copies of the further materials placed before the Advisory Board although the Advisory Board may have required further information in order to satisfy itself.
| 0 | 3,294 | 1,175 |
### 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:
in relation to that State. The extracts of the despatches, sent by the petitioner to the foreign newspaper, annexed to the grounds of detention show that they are not only prejudicial to the Government of India vis-_is Pakistan but they are prejudicial to the relations of India with foreign powers in general, the subject of the affairs of the State of Jammu and Kashmir not being a matter of interest solely to Pakistan but also of interest to other foreign powers.12. Coming now to objections made as to the grounds of detention regarding ground No. 1, it was urged that this ground was outside the scope of the order of detention. This ground mentions that the petitioner is engaged in carrying on propaganda against the Government of India and the Government of the State of Jammu and Kashmir in such a manner as to bring these two Government into hatred and contempt. In our opinion it cannot be said that this ground is beyond the scope of the order of detention because the bringing of the Government of India and the Government of the State of Jammu and Kashmir into hatred and contempt does involve the security of India.13. Regarding ground No. 2 it was urged that it does not disclose a single suggestion about the subversive activities of the petitioner, nor does it disclose what portions of the despatches were false, incomplete, misleading or one-sided. It was further pointed out that this ground speaks of the conditions in India in general and the policy of the Government of India in relation to the State of Jammu and Kashmir. What the policy of the Government of India is concerned that State is not stated. All these allegations were so vague that they gave no real opportunity to the petitioner to make a representation. Similarly, concerning grounds 3 and 4 it was urged that the grounds did not disclose what was the cause of India in relation to the State of Jammu and Kashmir. Here again, sufficient particulars were not given to enable the petitioner to make an effective representation to the Advisory Board. In our opinion, none of these contentions has any substance because with the grounds of detention were annexed extracts from the despatches sent by the petitioner to the newspaper "Dawn" published in Pakistan. These extracts gave sufficient particulars to enable the petitioner to make a representation with respect to all matters stated in the grounds of detention.14. Coming now to the submission that the respondents case was heard before the petitioners case and in his absence and that copies of further materials placed before the Advisory Board by the respondent were not supplied to the petitioner, it is necessary to refer to the procedure to be adopted by the Advisory Board under the provisions of the Act, Under S. 9. in every case where a detention order has been made the appropriate Government must within 30 days from the date of detention place before the Advisory Board the grounds, on which the order has been made, and the representation, if any, made by the detenus and, in a case where an order has been made by a officer, also the report by such officer under sub-s. (3) of S. 3. Section 10 sets out the procedure which the Advisory Board must follow when reference has been made to it under S. 9. Section 10(2) states:"The Advisory Board shall, after considering the materials placed before it and, after calling for such further information as it may deem necessary from the appropriate Government or from any person called for the purpose through the appropriate Government or from the person concerned, and if in any particular case it considers it essential so to do or if the person concerned desires to be heard, after hearing him in person submit its report to the appropriate Government within ten weeks from the date of detention".15. It is clear from these provisions that the Advisory Board after considering the materials placed before it under S. 9 can call for further information from the appropriate Government, and that thereafter if in any particular case is considers it essential so to do or if the detenue desires to be heard, after hearing him, submit its report to the appropriate Government. In such a situation the Advisory Board must of necessity obtain further information from the appropriate Government before it hears the detenue. In our opinion, there is nothing in S. 10 which offends against the principles of natural justice, Furthermore, the petition does not assert as a matter of fact that the respondents case was heard in the absence of the petitioner.Indeed, the respondents affidavit does not admit that any such thing happened.16. As for the copies of the further materials placed by the respondent before the Advisory Board not being supplied to the petitioner, it has to be observed that in paragraph 3 of the grounds of detention it was clearly stated that the Central Government considered it against public interest to disclose to the petitioner any facts or particulars as to dates, persons, places, nature of activities and the assistance given by him other than those which had already been mentioned in the grounds of detention. Under Art. 22(6) of the Constitution it is clearly stated that nothing in cl. (5) of that Article shall require the authority making an order of detention to disclose facts which such authority considers to be against public interest to be disclosed. In the present case the authority concerned had declined to disclose in the public interest any facts or particulars as to dates, persons, places, nature of activities and the assistance given by the petitioner other than those which had already been mentioned in the grounds of detention. In such circumstances, it would have been entirely inappropriate for the respondent to supply copies of the further materials placed before the Advisory Board although the Advisory Board may have required further information in order to satisfy itself.
### Response:
0
### Explanation:
sovereign status as complete as that of any nation which is not a member of the Commonwealth. Each member of the Commonwealth can have diplomatic relations with each other and with nations outside the Commonwealth. Indeed, in the matter of sovereign status they are as independent as any nation outside the Commonwealth. It follows, therefore, that in their relations between each other and nations outside the Commonwealth they must be regarded as foreign powers and their affairs as between them are foreign affairs. In our opinion, that which is not concerned with the internal affairs of a member of the Commonwealth, is its external affairs, that is to say, a foreignquestion for decision is whether Pakistan is a foreign power. On a correct interpretation of the meaning of the words "the relations of India with foreign powers" we have no doubt that that Pakistan must be regarded as a foreign power, although that country may be a part of the Commonwealth as India is. It has sovereignty in matters of internal administration and external relations quite independent and disconnected with the sovereignty of India or any other member of the Commonwealth in these respects.Pakistan has its own diplomatic relations with various countries including India. Apart from its membership of the Commonwealth, the independent sovereign status of Pakistan is the same as the sovereign status of any country outside the Commonwealth.It was, however, suggested that the Order made by the Governor General took Pakistan outside the category of a foreign power.In our opinion, this is a fallacious argument because Art. 367(3) itself states that for the purposes of the India Constitution Foreign State means any State other than India but the President, and before the commencement of the Constitution the Governor General of India under Art. 392(3), may by order declare any State not to be a Foreign State for such purposes as may be specified in the Order. In the Order the Governor General declared that every country within the Commonwealth was not a Foreign State for the purposes of the Constitution. In the Constitution of India there are various Articles in which the expression Foreign State appears e.g. Art. 18(2), (3), (4), Art. 19(2), Art. 102(1)(d) and Art. 191(1) (d).It is clear therefore, that under the Order, for the purposes of these Articles or any other Article where the expression "Foreign State" appears, that expression would not cover a country within the Commonwealth unless Parliament enacted otherwise.The Order cannot be brought into aid for the purposes of construing the expression foreign affairs appearing in item 9 of List I of the Seventh Schedule and the expression foreign powers in S. 3 of the Act. These expressions must be construed in the ordinary way giving the words their ordinary meaning. We have no doubt that Pakistan is a foreign power.Under the provisions of the Act the Central Government and the State Government could detain a person who was acting in a manner prejudicial to the relations of India with foreign powers which would include Pakistan. It is to be further remembered that neither in the order of detention nor in the grounds of detention there is any mention of Pakistan specifically. On the contrary, in the grounds of detention, it is clearly stated that the cumulative effect of the petitioners activities was prejudicial to the relations of India with foreign powers in general (vide grounds 3 and 4). The grounds of detention refers to the publication in a foreign newspaper of despatches of news and views relating to the State of Jammu and Kashmir containing false, incomplete, one-sided and misleading information and about the policy of the Government of India in relation to that State. The extracts of the despatches, sent by the petitioner to the foreign newspaper, annexed to the grounds of detention show that they are not only prejudicial to the Government of India vis-_is Pakistan but they are prejudicial to the relations of India with foreign powers in general, the subject of the affairs of the State of Jammu and Kashmir not being a matter of interest solely to Pakistan but also of interest to other foreignour opinion it cannot be said that this ground is beyond the scope of the order of detention because the bringing of the Government of India and the Government of the State of Jammu and Kashmir into hatred and contempt does involve the security ofour opinion, none of these contentions has any substance because with the grounds of detention were annexed extracts from the despatches sent by the petitioner to the newspaper "Dawn" published in Pakistan. These extracts gave sufficient particulars to enable the petitioner to make a representation with respect to all matters stated in the grounds of detention.As for the copies of the further materials placed by the respondent before the Advisory Board not being supplied to the petitioner, it has to be observed that in paragraph 3 of the grounds of detention it was clearly stated that the Central Government considered it against public interest to disclose to the petitioner any facts or particulars as to dates, persons, places, nature of activities and the assistance given by him other than those which had already been mentioned in the grounds of detention. Under Art. 22(6) of the Constitution it is clearly stated that nothing in cl. (5) of that Article shall require the authority making an order of detention to disclose facts which such authority considers to be against public interest to be disclosed. In the present case the authority concerned had declined to disclose in the public interest any facts or particulars as to dates, persons, places, nature of activities and the assistance given by the petitioner other than those which had already been mentioned in the grounds of detention. In such circumstances, it would have been entirely inappropriate for the respondent to supply copies of the further materials placed before the Advisory Board although the Advisory Board may have required further information in order to satisfy itself.
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Moreshwar & Another Vs. The State of Maharashtra
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that if conviction could safely be based on it, if it is capable of belief independently of the confession, then it is not necessary to call the confession in aid. However, the Apex Court has further held that but cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event, the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept. It could thus be seen that the Apex Court has held that first the other evidence has to be marshalled and if upon accepting the evidence as proved by prosecution independent of confession the Judge comes to the conclusion that guilt of the accused is proved then there should be no difficulty in resting the order of conviction. However, in a borderline case, though the evidence brought on record may be found sufficient to pass an order of conviction; however, the Judge is not prepared to do so, then, in such a case, the confession can be used to corroborate the other evidence.26. The law as laid down in the case of Kashmira Singh (supra) further came for consideration before the Constitution Bench of the Apex Court in the case of Haricharan Kurmi vs. State of Bihar reported in AIR 1964 SC 1184 before the Constitution Bench of the Apex Court. Their Lordships of the Apex Court considering a confession which was somewhat similar to one given by original accused no.3 herein observed in paragraph 16 thus :It is true that the confession made by Ram Surat is a detailed statement and it attributes to the two appellants a major part in the commission of the offence. It is also true that the said confession has been found to be voluntary, and true so far as the part played by Ram Surat himself is concerned, and so, it is not unlikely that the confessional statement in regard to the part played by the two appellants may also be true; and in that sense, the reading of the said confession may raise a serious suspicion against the accused. But it is precisely in such cases that the true legal approach must be adopted and suspicion, however grave, must not be allowed to take the place of proof. As we have already indicated, it has been a recognised principle of the administration of criminal law in this country for over half a century that the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence. In criminal trials, there is no scope for applying the principle of moral conviction or grave suspicion. In criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt. That is precisely what has happened in these appeals. (emphasis supplied).27. It could thus be seen that Their Lordships of the Apex Court have observed that if the confession made by a person is found to be voluntary and true insofar as the part played by the person making confession is concerned, it was not unlikely that the confessional statement in regard to the part played by the appellants may also be true. The Apex Court further observed that in that sense, the reading of the said confession may raise a serious suspicion against the accused. However, Their Lordships observed that it is precisely in such cases that the true legal approach must be adopted and suspicion, however grave, must not be allowed to take the place of proof. Their Lordships observed that in cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt.28. The Apex Court in a recent Judgment in the case of Pancho .vs. State of Haryana reported in AIR 2012 SC 523 has reiterated the same position. It has been held by Their Lordships that he Court cannot start with confession of co-accused. It must begin with other evidence adduced by prosecution and after it has formed its opinion with regard to the quality and effect of said evidence, then only it is permissible to turn to confession.29. Applying the principle as laid down by the Apex Court, we have scrutinized the other evidence as is led by the prosecution against the present appellants i.e. original accused nos. 1 and 2. We have come to the conclusion that prosecution has failed to prove a single incriminating circumstance. In any case, prosecution has utterly failed to prove the chain of circumstances which interlinked to each other leads to no other conclusion than the guilt of the accused. In that view of the matter, the confession of original accused no.3, in our view, could not have been the sole basis for conviction of original accused nos. 1 and 3. As already held by the Apex Court, however grave the suspicion be, it cannot be permitted to take place of proof beyond reasonable doubt. In such a case, accused would be entitled to the benefit of doubt.
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1[ds]27. It could thus be seen that Their Lordships of the Apex Court have observed that if the confession made by a person is found to be voluntary and true insofar as the part played by the person making confession is concerned, it was not unlikely that the confessional statement in regard to the part played by the appellants may also be true. The Apex Court further observed that in that sense, the reading of the said confession may raise a serious suspicion against the accused. However, Their Lordships observed that it is precisely in such cases that the true legal approach must be adopted and suspicion, however grave, must not be allowed to take the place of proof. Their Lordships observed that in cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of athe presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt.28. The Apex Court in a recent Judgment in the case of Pancho .vs. State of Haryana reported in AIR 2012 SC 523 has reiterated the same position. It has been held by Their Lordships that he Court cannot start with confession ofIt must begin with other evidence adduced by prosecution and after it has formed its opinion with regard to the quality and effect of said evidence, then only it is permissible to turn to confession.29. Applying the principle as laid down by the Apex Court, we have scrutinized the other evidence as is led by the prosecution against the present appellants i.e. original accused nos. 1 and 2. We have come to the conclusion that prosecution has failed to prove a single incriminating circumstance. In any case, prosecution has utterly failed to prove the chain of circumstances which interlinked to each other leads to no other conclusion than the guilt of the accused. In that view of the matter, the confession of original accused no.3, in our view, could not have been the sole basis for conviction of original accused nos. 1 and 3. As already held by the Apex Court, however grave the suspicion be, it cannot be permitted to take place of proof beyond reasonable doubt. In such a case, accused would be entitled to the benefit of doubt.
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that if conviction could safely be based on it, if it is capable of belief independently of the confession, then it is not necessary to call the confession in aid. However, the Apex Court has further held that but cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event, the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept. It could thus be seen that the Apex Court has held that first the other evidence has to be marshalled and if upon accepting the evidence as proved by prosecution independent of confession the Judge comes to the conclusion that guilt of the accused is proved then there should be no difficulty in resting the order of conviction. However, in a borderline case, though the evidence brought on record may be found sufficient to pass an order of conviction; however, the Judge is not prepared to do so, then, in such a case, the confession can be used to corroborate the other evidence.26. The law as laid down in the case of Kashmira Singh (supra) further came for consideration before the Constitution Bench of the Apex Court in the case of Haricharan Kurmi vs. State of Bihar reported in AIR 1964 SC 1184 before the Constitution Bench of the Apex Court. Their Lordships of the Apex Court considering a confession which was somewhat similar to one given by original accused no.3 herein observed in paragraph 16 thus :It is true that the confession made by Ram Surat is a detailed statement and it attributes to the two appellants a major part in the commission of the offence. It is also true that the said confession has been found to be voluntary, and true so far as the part played by Ram Surat himself is concerned, and so, it is not unlikely that the confessional statement in regard to the part played by the two appellants may also be true; and in that sense, the reading of the said confession may raise a serious suspicion against the accused. But it is precisely in such cases that the true legal approach must be adopted and suspicion, however grave, must not be allowed to take the place of proof. As we have already indicated, it has been a recognised principle of the administration of criminal law in this country for over half a century that the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence. In criminal trials, there is no scope for applying the principle of moral conviction or grave suspicion. In criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt. That is precisely what has happened in these appeals. (emphasis supplied).27. It could thus be seen that Their Lordships of the Apex Court have observed that if the confession made by a person is found to be voluntary and true insofar as the part played by the person making confession is concerned, it was not unlikely that the confessional statement in regard to the part played by the appellants may also be true. The Apex Court further observed that in that sense, the reading of the said confession may raise a serious suspicion against the accused. However, Their Lordships observed that it is precisely in such cases that the true legal approach must be adopted and suspicion, however grave, must not be allowed to take the place of proof. Their Lordships observed that in cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt.28. The Apex Court in a recent Judgment in the case of Pancho .vs. State of Haryana reported in AIR 2012 SC 523 has reiterated the same position. It has been held by Their Lordships that he Court cannot start with confession of co-accused. It must begin with other evidence adduced by prosecution and after it has formed its opinion with regard to the quality and effect of said evidence, then only it is permissible to turn to confession.29. Applying the principle as laid down by the Apex Court, we have scrutinized the other evidence as is led by the prosecution against the present appellants i.e. original accused nos. 1 and 2. We have come to the conclusion that prosecution has failed to prove a single incriminating circumstance. In any case, prosecution has utterly failed to prove the chain of circumstances which interlinked to each other leads to no other conclusion than the guilt of the accused. In that view of the matter, the confession of original accused no.3, in our view, could not have been the sole basis for conviction of original accused nos. 1 and 3. As already held by the Apex Court, however grave the suspicion be, it cannot be permitted to take place of proof beyond reasonable doubt. In such a case, accused would be entitled to the benefit of doubt.
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27. It could thus be seen that Their Lordships of the Apex Court have observed that if the confession made by a person is found to be voluntary and true insofar as the part played by the person making confession is concerned, it was not unlikely that the confessional statement in regard to the part played by the appellants may also be true. The Apex Court further observed that in that sense, the reading of the said confession may raise a serious suspicion against the accused. However, Their Lordships observed that it is precisely in such cases that the true legal approach must be adopted and suspicion, however grave, must not be allowed to take the place of proof. Their Lordships observed that in cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of athe presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt.28. The Apex Court in a recent Judgment in the case of Pancho .vs. State of Haryana reported in AIR 2012 SC 523 has reiterated the same position. It has been held by Their Lordships that he Court cannot start with confession ofIt must begin with other evidence adduced by prosecution and after it has formed its opinion with regard to the quality and effect of said evidence, then only it is permissible to turn to confession.29. Applying the principle as laid down by the Apex Court, we have scrutinized the other evidence as is led by the prosecution against the present appellants i.e. original accused nos. 1 and 2. We have come to the conclusion that prosecution has failed to prove a single incriminating circumstance. In any case, prosecution has utterly failed to prove the chain of circumstances which interlinked to each other leads to no other conclusion than the guilt of the accused. In that view of the matter, the confession of original accused no.3, in our view, could not have been the sole basis for conviction of original accused nos. 1 and 3. As already held by the Apex Court, however grave the suspicion be, it cannot be permitted to take place of proof beyond reasonable doubt. In such a case, accused would be entitled to the benefit of doubt.
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M/S.Saci Allied Products Ltd., U.P Vs. Commnr.Of Cent.Excise,Meerut
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of India vs. Kanti Lal Chunni Lal & Ors. (supra) which has been followed by the Bombay High Court in the case of Cosmos (India) Rubber Works Pvt. Ltd. & Ors. vs. Union of India, 1988(36) E.L.T. 102 (Bom). The Tribunal has also passed the judgment to the similar effect in the case of Racold Appliances vs. CCE, 1994(69)E.L.T. 312 which has been affirmed by this Court in 1998(100) E.L.T. A64. This issue, therefore, is no longer res integra and, therefore, the Collector could not have confirmed the demand under Section 4(1)(b) of the Act when there are significant sales at the factory gate to the independent buyers throughout India. We have already referred to the certain findings of the Tribunal applying the first proviso to Section 4(1)(a) of the Act, confirmed the same demand. In our view, it is not permissible on the part of the CEGAT to change the basis of the demand since the assessee was asked to show only in relation to applicability of Section 4(1)(b) of the Act. In the case of Commissioner of Central Excise, Calcutta-II vs. TISCO Ltd., 2004(174) E.L.T. 307(SC) (S.N. Variava & Dr. AR. Lakshmanan,JJ.), it was held that in order to attract the first proviso to Section 4(1)(a)(i) of the Act, there has to be an averment and the proof of the existence of a trade practice in that trade that the goods are being sold at different prices to different class of buyers. This Court, further, held that to claim benefit of proviso to Section 4(1)(a)(i) of the Act, a trade practice must be averred and shown to exist and it must be shown that there is a different class of buyers and only on basis of facts averred and proved, a conclusion can be reached that the sale is to a different class of buyers. This is a condition precedent for invoking the first proviso to Section 4(1)(a) of the Act. As already noticed, neither the show cause notice nor the Collectors order nor the CEGAT order makes any such averment let alone proving the same with evidence. On this ground alone the invocation of First Proviso to Section 4(1)(a) of the Act must fail. Further, the first proviso to Section 4(1)(a) specifically states that the sale to different class of buyers should not be to related persons. In view of the specific provision contained in the first proviso to Section 4(1)(a) of the Act, it is difficult to understand as to how the CEGAT applied this provision. In the case of C.C.E. vs. Ashok Ark, 2005(179) E.L.T. 513(SC), a Bench of S.N. Variava, Dr.AR. Lakshmanan and S.H. Kapadia, JJ. observed as under: "6. We are unable to agree with the view expressed by the Tribunal. The Tribunal has ignored the proviso to Rule 173C(11). It is true that in cases where, having regard to the nature of the goods and frequent fluctuations of the price of the goods, an assessee or class of assessee may be allowed to declare price of goods on the basis of the challan and advice note. But those are cases where it is not possible to determine the value in accordance with Section 4. Under Section 4, as it then read, the value of the goods is the normal price, i.e. the price at which the goods are ordinarily sold by an assessee to a buyer in the course of wholesale trade for delivery at the time and place of removal where the buyer is not a related person and the price is the sole consideration for the sale. Thus, if it is found that there is a normal price at which goods are sold at the factory gate then even though earlier the assessee was permitted to clear under rule 173C(11) the re-assessment would be on the basis of the normal price as determined under Section 4.7. We are unable to accept the submission that such an interpretation would negate rule 173C(11). A Rule cannot override or be contrary to a Section. Under Section 4 the normal price has to be the value at which the goods are ordinarily sold. Thus clearly Rule 173C(11) only provides for cases where the normal price cannot be ascertained. In those cases, goods are allowed to be removed on basis of price shown on the challan or advise note. But the framers of the rule were careful enough to provide, in the proviso, that if the price on the challan or advise note does not represent the value as determined under Section 4 then there can be reassessment.8. In this case, it could not be shown that the price at the factory gate could not be determined or that the price at the factory gate was varying. Thus the assessing authority was right in holding that the value would have to be determined as per that price. The Tribunal was clearly in error in ignoring the proviso." 14. In the case of Hindustan Polymers Co. Ltd. vs. Collector of C.Ex. Guntur, 1999 (106) E.L.T. 12(S.C.), this Court in paragraph 6 held as under: "While we appreciate the Tribunals desire to do complete justice and mould the relief in that direction, we think that, in the circumstances, the Tribunal should not, in this case, have passed an order which proceeded upon a basis that is altogether different from that of the demand made upon the appellants. That is not "moulding" relief. The demand that was made upon the appellants was under Tariff Item 68 and it proceeded upon the basis that there was a process of manufacture of coloured polystyrene from uncoloured polytyrene. Having come to a conclusion against the Revenue on these counts, the appropriate order for the Tribunal to have passed was to have set aside the demand and left it open to the Revenue to proceed against the appellants, as permissible under the law. The appellants would then have had the opportunity of meeting the precise case made out by the Revenue." 15.
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1[ds]Thus according to the appellate Tribunal, since the dealers in Uttar Pradesh who purchased the goods from Syndet, and independent dealers in other parts of the country to whom the appellants directly sold the goods are different class of buyers, appellants price to the independent dealers cannot be taken as the basis for assessing appellants sales to Syndet in Uttar Pradesh. This finding of the appellate Tribunal is based on first proviso to Section 4(1(a) of the Act. While the show cause notice and the order of the Collector proceeded on the basis of the invocation of third proviso to Section 4(1)(a) of the Act, the appellate Tribunal for the first time in the impugned order has sustained the proceedings on the basis of first proviso to Section 4(1)(a) of the Act. It was argued that the first proviso to Section 4(1)(a) of the Act was never invoked by the Department either in the show cause notice or in the impugned order and it was for the first time that the appellate Tribunal in the impugned order has sought to sustain the impugned order by invoking the first proviso to Section 4(1)(a) of the Act. It is thus seen that the Tribunal has gone totally beyond the show cause notice and the order of the Collector, which is impermissible. The appellate Tribunal cannot sustain the case of the Revenue against the appellants on a ground not raised by the Revenue either in the show cause notice or in the order. In this context, we may usefully refer to the judgment of this Court in the case ofReckitt & Colman of India Ltd. vs. CCE, 1996(88)ELT641(SC). This Court held that it is beyond the competence of the Tribunal to make out in favour of the Revenue a case which the Revenue had never convassed and which the appellants had never been required to meet. The impugned order of the Tribunal which had gone beyond the show cause notice and the order of the respondent-Collector is, therefore, liable to be set aside. Regarding Submission No.2 We shall now consider the second submission made by Mr. V. Lakshmikumaran. We have already extracted Section 4(1)(a) of the Act and the third proviso to Section 4(1)(a) of the Act in paragraph supra. In the present case, normal price satisfying the requirements of Section 4(1)(a) of the Act is available and there is no dispute on this factual position. About 35% of the production of the goods is sold by the appellants to independent and unrelated dealers spread through the country other than in Uttar Pradesh. There is no dispute raised by the Central Excise Department with regard to these sales. Appellants sale price to these independent dealers duly satisfy the requirements of Section 4(1)(a) of the Act in every respect and there is no dispute on this factual position. In respect of these sales to independent dealers located other than in U.P., appellants have paid excise duty based on their sale price to these dealers. This factual position is not disputed by the respondent. It was argued that once such a wholesale price to an unrelated buyer satisfying the requirements of Section 4(1)(a) of the Act is available, then that price alone should be treated as the normal price in respect of all the sales made by the appellants including the sales made to related persons. In other words, where sales are made by the assessee to wholesale buyers who are unrelated and also to buyers who are related, then the price to unrelated buyers should be adopted as the basis for payment of excise duty even in respect of sales to unrelated buyers. In such a situation, third proviso to Section 4(1)(a) of the Act will not come into play at all. Since in the present case, normal price to independent dealers is available, same should be treated as the basis for arriving at the assessable value in respect of sales to Syndet also. This submission of Mr. V. Lakshmikumaran is duly supported by the judgment of this Court in Union of India vs. Kanti Lal Chunilal & Ors., 1986(Suppl) SCC 345 = 1986(26)ELT 289(SC). This judgment dealt with a situation when 34% to 40% of sales were effected by the assessee to a related buyer namely, Alok Textiles and balance sales were to unrelated buyers. Excise Department sought to levy excise duty, in respect of sales made to Alok Textiles, based on Alok Textiles resale price to its buyers. This Court negatived such an approach and held that the value for the purpose of excise duty even in respect of sales effected to the related buyer Alok Textiles should be the price at which the goods were sold to unrelated buyers. The relevant portion of the judgment is reproduced hereinbelow:"The respondents sold only 34 to 40% of the total production to the firm of M/s Alok Textiles and the remaining production was sold to other wholesale dealers. The assessing authorities were, therefore, clearly wrong in taking the wholesale cash price at which the excisable goods were sold by the wholesale traders as the value of excisable goods for the purpose of levy of excise duty. The wholesale cash price at which the excisable goods were sold by the respondents to M/s Alok Textiles and other wholesale dealers was the only price liable to be taken for determination of the value for the purpose of levy of excisesee merit and substance in this contention. Mr. V. Lakshmikumaran invited our attention to the Circulars issued by the Central Board of Excise and Customs and submitted that the Revenue is bound by the circulars issued by it and cannot contend to the contrary. Therefore, in view of the circular, third proviso to Section 4(1)(a) of the Act is not invokable in the presentthis view of the matter, the argument advanced by Mr. A Subba Rao, learned counsel appearing for the respondent, has no merits. As a matter of fact, the Tribunal, by its order, has not questioned the genuineness of the sale between the appellants and Syndet. The appellants submitted before the Tribunal and also before the Collector that the depot of Syndet was existing right from 1976 and it was not created only after the appellants started selling the products to Syndet in 1990. The appellants, in support of this submissions, also filed affidavits of dealers, transporters, employees of Syndet. The Tribunal having accepted the sale as a genuine sale and having accepted that price to independent dealers is available under Section 4(1)(a) of the Act, the appellate Tribunal ought not to have rejected the submission of the appellants regarding the acceptance of price to independent dealers for sales to Syndet also. As could be seen from the records produced before the authorities below, Syndet also manufactures the goods in its Okhla factory in Delhi and sells the goods on its own and the Central Excise Department at Delhi has accepted the price at which Syndet has been selling to its dealers and paying excise duty accordingly without anyhave already reproduced the first proviso to Section 4(1)(a) of the Act. Thus the first proviso to Section 4(1)(a) of the Act merely says that where the goods are sold by the assessee to different classes of buyers at different prices, each such price, subject to the same satisfying the requirements of Section 4(1)(a) of the Act be deemed to be the normal price of such goods. Thus, the most important criteria for invoking the proviso is that each such price should satisfy the requirement of Section 4(1)(a) of the Act and if the price do not satisfy the requirements of Section 4(1)(a) of the Act, then the proviso cannot apply. One of the circumstances specified in Section 4(1)(a) of the Act is that the sale should be to unrelated buyers. If the sale is effected to a related buyer, then this requirement of the proviso is not satisfied. The proviso would apply only when the assessee sells the goods at different prices to different class of buyers. In the present case, sales to dealers in Uttar Pradesh which is being considered as different class by the Tribunal, is not made by assessee - appellant, SACI, but by Syndet after purchasing the goods from the appellant. Hence, first proviso to Section 4(1)(a) of the Act is wholly inapplicable. The impugned order of the appellate Tribunal which is solely based on the first proviso to Section 4(1)(a) of the Act is, therefore, in our view, cannot be sustained. Our attention was invited to the circular No.3/90-CX.1 dated 25.1.1990 issued by the Central Board of Excise and Customs (at page 18 of Vol.II of the paper book) taking the view that the wholesale dealers in India cannot be considered as belonging to different classes simply because they are located in different places. This position was again reiterated by the CBEC vide its further Circular No. 24/14/93 dated 31.12.1993. Thus, during the disputed period in question in the present case, the CBEC itself has held that dealers in different regions cannot be treated as different classes of buyers and, therefore, the first proviso to Section 4(1)(a) of the Act cannot be invoked in such circumstances. Having issued such a circular which is binding on the Department, the Revenue cannot now contend to the contrary and say that dealers in different regions constitute different classes of buyers and, therefore, price to independent dealers cannot be adopted for sales to Syndet in Uttar Pradesh. Further, during the disputed period, when the appellants were filing price lists regionwise declaring different prices for different dealers located in different regions, based on the above circular dated 25.1.1990, show cause notices were issued by the Department contending that it is not permissible to have different prices for dealers in different regions. The show cause notices sought to take the highest price as the assessable value which incidently was the price at which the goods were sold by Syndet to its dealers. Having taken such a stand based on the circular of CBEC, which held the field then , it is not open to the Revenue or to the appellate Tribunal to hold that dealers in different regions constitute different classes of buyers and, therefore, the price to independent dealers in other regions cannot be adopted as the basis for sales to Syndet in Uttar4(1)(b) has already been extracted above. The said section will apply only when goods are sold only to all through related persons and at the normal price such goods are resold to unrelated dealers is not applicable. Since, the Collector has given a finding that there exists factory gate as well as to independent dealers throughout India at a uniform price and which is not distributing normal price for such goods is ascertainable at the factory gate. In such an event, section 4(1)(b) of the Act is not permissible. These submissions merits acceptance. We have already referred to the judgment of this Court in Union of India vs. Kanti Lal Chunni Lal & Ors. (supra) which has been followed by the Bombay High Court in the case of Cosmos (India) Rubber Works Pvt. Ltd. & Ors. vs. Union of India, 1988(36) E.L.T. 102 (Bom). The Tribunal has also passed the judgment to the similar effect in the case of RacoldAppliances vs. CCE, 1994(69)E.L.T. 312which has been affirmed by this Court in 1998(100) E.L.T. A64. This issue, therefore, is no longer res integra and, therefore, the Collector could not have confirmed the demand under Section 4(1)(b) of the Act when there are significant sales at the factory gate to the independent buyers throughout India. We have already referred to the certain findings of the Tribunal applying the first proviso to Section 4(1)(a) of the Act, confirmed the same demand. In our view, it is not permissible on the part of the CEGAT to change the basis of the demand since the assessee was asked to show only in relation to applicability of Section 4(1)(b) of the Act.In the case of Hindustan Polymers Co. Ltd. vs. Collector of C.Ex. Guntur, 1999 (106) E.L.T. 12(S.C.), this Court in paragraph 6 held as under: "While we appreciate the Tribunals desire to do complete justice and mould the relief in that direction, we think that, in the circumstances, the Tribunal should not, in this case, have passed an order which proceeded upon a basis that is altogether different from that of the demand made upon the appellants. That is not "moulding" relief. The demand that was made upon the appellants was under Tariff Item 68 and it proceeded upon the basis that there was a process of manufacture of coloured polystyrene from uncoloured polytyrene. Having come to a conclusion against the Revenue on these counts, the appropriate order for the Tribunal to have passed was to have set aside the demand and left it open to the Revenue to proceed against the appellants, as permissible under the law. The appellants would then have had the opportunity of meeting the precise case made out by the Revenue."
| 1 | 8,203 | 2,561 |
### 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:
of India vs. Kanti Lal Chunni Lal & Ors. (supra) which has been followed by the Bombay High Court in the case of Cosmos (India) Rubber Works Pvt. Ltd. & Ors. vs. Union of India, 1988(36) E.L.T. 102 (Bom). The Tribunal has also passed the judgment to the similar effect in the case of Racold Appliances vs. CCE, 1994(69)E.L.T. 312 which has been affirmed by this Court in 1998(100) E.L.T. A64. This issue, therefore, is no longer res integra and, therefore, the Collector could not have confirmed the demand under Section 4(1)(b) of the Act when there are significant sales at the factory gate to the independent buyers throughout India. We have already referred to the certain findings of the Tribunal applying the first proviso to Section 4(1)(a) of the Act, confirmed the same demand. In our view, it is not permissible on the part of the CEGAT to change the basis of the demand since the assessee was asked to show only in relation to applicability of Section 4(1)(b) of the Act. In the case of Commissioner of Central Excise, Calcutta-II vs. TISCO Ltd., 2004(174) E.L.T. 307(SC) (S.N. Variava & Dr. AR. Lakshmanan,JJ.), it was held that in order to attract the first proviso to Section 4(1)(a)(i) of the Act, there has to be an averment and the proof of the existence of a trade practice in that trade that the goods are being sold at different prices to different class of buyers. This Court, further, held that to claim benefit of proviso to Section 4(1)(a)(i) of the Act, a trade practice must be averred and shown to exist and it must be shown that there is a different class of buyers and only on basis of facts averred and proved, a conclusion can be reached that the sale is to a different class of buyers. This is a condition precedent for invoking the first proviso to Section 4(1)(a) of the Act. As already noticed, neither the show cause notice nor the Collectors order nor the CEGAT order makes any such averment let alone proving the same with evidence. On this ground alone the invocation of First Proviso to Section 4(1)(a) of the Act must fail. Further, the first proviso to Section 4(1)(a) specifically states that the sale to different class of buyers should not be to related persons. In view of the specific provision contained in the first proviso to Section 4(1)(a) of the Act, it is difficult to understand as to how the CEGAT applied this provision. In the case of C.C.E. vs. Ashok Ark, 2005(179) E.L.T. 513(SC), a Bench of S.N. Variava, Dr.AR. Lakshmanan and S.H. Kapadia, JJ. observed as under: "6. We are unable to agree with the view expressed by the Tribunal. The Tribunal has ignored the proviso to Rule 173C(11). It is true that in cases where, having regard to the nature of the goods and frequent fluctuations of the price of the goods, an assessee or class of assessee may be allowed to declare price of goods on the basis of the challan and advice note. But those are cases where it is not possible to determine the value in accordance with Section 4. Under Section 4, as it then read, the value of the goods is the normal price, i.e. the price at which the goods are ordinarily sold by an assessee to a buyer in the course of wholesale trade for delivery at the time and place of removal where the buyer is not a related person and the price is the sole consideration for the sale. Thus, if it is found that there is a normal price at which goods are sold at the factory gate then even though earlier the assessee was permitted to clear under rule 173C(11) the re-assessment would be on the basis of the normal price as determined under Section 4.7. We are unable to accept the submission that such an interpretation would negate rule 173C(11). A Rule cannot override or be contrary to a Section. Under Section 4 the normal price has to be the value at which the goods are ordinarily sold. Thus clearly Rule 173C(11) only provides for cases where the normal price cannot be ascertained. In those cases, goods are allowed to be removed on basis of price shown on the challan or advise note. But the framers of the rule were careful enough to provide, in the proviso, that if the price on the challan or advise note does not represent the value as determined under Section 4 then there can be reassessment.8. In this case, it could not be shown that the price at the factory gate could not be determined or that the price at the factory gate was varying. Thus the assessing authority was right in holding that the value would have to be determined as per that price. The Tribunal was clearly in error in ignoring the proviso." 14. In the case of Hindustan Polymers Co. Ltd. vs. Collector of C.Ex. Guntur, 1999 (106) E.L.T. 12(S.C.), this Court in paragraph 6 held as under: "While we appreciate the Tribunals desire to do complete justice and mould the relief in that direction, we think that, in the circumstances, the Tribunal should not, in this case, have passed an order which proceeded upon a basis that is altogether different from that of the demand made upon the appellants. That is not "moulding" relief. The demand that was made upon the appellants was under Tariff Item 68 and it proceeded upon the basis that there was a process of manufacture of coloured polystyrene from uncoloured polytyrene. Having come to a conclusion against the Revenue on these counts, the appropriate order for the Tribunal to have passed was to have set aside the demand and left it open to the Revenue to proceed against the appellants, as permissible under the law. The appellants would then have had the opportunity of meeting the precise case made out by the Revenue." 15.
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1
### Explanation:
proviso to Section 4(1)(a) of the Act. Thus the first proviso to Section 4(1)(a) of the Act merely says that where the goods are sold by the assessee to different classes of buyers at different prices, each such price, subject to the same satisfying the requirements of Section 4(1)(a) of the Act be deemed to be the normal price of such goods. Thus, the most important criteria for invoking the proviso is that each such price should satisfy the requirement of Section 4(1)(a) of the Act and if the price do not satisfy the requirements of Section 4(1)(a) of the Act, then the proviso cannot apply. One of the circumstances specified in Section 4(1)(a) of the Act is that the sale should be to unrelated buyers. If the sale is effected to a related buyer, then this requirement of the proviso is not satisfied. The proviso would apply only when the assessee sells the goods at different prices to different class of buyers. In the present case, sales to dealers in Uttar Pradesh which is being considered as different class by the Tribunal, is not made by assessee - appellant, SACI, but by Syndet after purchasing the goods from the appellant. Hence, first proviso to Section 4(1)(a) of the Act is wholly inapplicable. The impugned order of the appellate Tribunal which is solely based on the first proviso to Section 4(1)(a) of the Act is, therefore, in our view, cannot be sustained. Our attention was invited to the circular No.3/90-CX.1 dated 25.1.1990 issued by the Central Board of Excise and Customs (at page 18 of Vol.II of the paper book) taking the view that the wholesale dealers in India cannot be considered as belonging to different classes simply because they are located in different places. This position was again reiterated by the CBEC vide its further Circular No. 24/14/93 dated 31.12.1993. Thus, during the disputed period in question in the present case, the CBEC itself has held that dealers in different regions cannot be treated as different classes of buyers and, therefore, the first proviso to Section 4(1)(a) of the Act cannot be invoked in such circumstances. Having issued such a circular which is binding on the Department, the Revenue cannot now contend to the contrary and say that dealers in different regions constitute different classes of buyers and, therefore, price to independent dealers cannot be adopted for sales to Syndet in Uttar Pradesh. Further, during the disputed period, when the appellants were filing price lists regionwise declaring different prices for different dealers located in different regions, based on the above circular dated 25.1.1990, show cause notices were issued by the Department contending that it is not permissible to have different prices for dealers in different regions. The show cause notices sought to take the highest price as the assessable value which incidently was the price at which the goods were sold by Syndet to its dealers. Having taken such a stand based on the circular of CBEC, which held the field then , it is not open to the Revenue or to the appellate Tribunal to hold that dealers in different regions constitute different classes of buyers and, therefore, the price to independent dealers in other regions cannot be adopted as the basis for sales to Syndet in Uttar4(1)(b) has already been extracted above. The said section will apply only when goods are sold only to all through related persons and at the normal price such goods are resold to unrelated dealers is not applicable. Since, the Collector has given a finding that there exists factory gate as well as to independent dealers throughout India at a uniform price and which is not distributing normal price for such goods is ascertainable at the factory gate. In such an event, section 4(1)(b) of the Act is not permissible. These submissions merits acceptance. We have already referred to the judgment of this Court in Union of India vs. Kanti Lal Chunni Lal & Ors. (supra) which has been followed by the Bombay High Court in the case of Cosmos (India) Rubber Works Pvt. Ltd. & Ors. vs. Union of India, 1988(36) E.L.T. 102 (Bom). The Tribunal has also passed the judgment to the similar effect in the case of RacoldAppliances vs. CCE, 1994(69)E.L.T. 312which has been affirmed by this Court in 1998(100) E.L.T. A64. This issue, therefore, is no longer res integra and, therefore, the Collector could not have confirmed the demand under Section 4(1)(b) of the Act when there are significant sales at the factory gate to the independent buyers throughout India. We have already referred to the certain findings of the Tribunal applying the first proviso to Section 4(1)(a) of the Act, confirmed the same demand. In our view, it is not permissible on the part of the CEGAT to change the basis of the demand since the assessee was asked to show only in relation to applicability of Section 4(1)(b) of the Act.In the case of Hindustan Polymers Co. Ltd. vs. Collector of C.Ex. Guntur, 1999 (106) E.L.T. 12(S.C.), this Court in paragraph 6 held as under: "While we appreciate the Tribunals desire to do complete justice and mould the relief in that direction, we think that, in the circumstances, the Tribunal should not, in this case, have passed an order which proceeded upon a basis that is altogether different from that of the demand made upon the appellants. That is not "moulding" relief. The demand that was made upon the appellants was under Tariff Item 68 and it proceeded upon the basis that there was a process of manufacture of coloured polystyrene from uncoloured polytyrene. Having come to a conclusion against the Revenue on these counts, the appropriate order for the Tribunal to have passed was to have set aside the demand and left it open to the Revenue to proceed against the appellants, as permissible under the law. The appellants would then have had the opportunity of meeting the precise case made out by the Revenue."
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HARISH KUMAR (Since deceased) Through: Lrs Vs. PANKAJ KUMAR GARG
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plaintiff does not have any property apart from the property in question in which he could settle him by getting his business started. The defendant does not have any requirement of the said shop. The shop is often closed and defendant mostly does the business of property dealing and he has occupied the property merely for name sake and he does not have any requirement of the property in question. 5.That the plaintiff wants to get his son Vertul Kumar settled by starting the business but the plaintiff does not have any other property apart of the property in question for starting the business for his son. Due to this reason, the plaintiff has immediate and legal and bonafide requirement of the property in question so that he could get his son settled by getting him in business and he could be relieved from his responsibility. 6.That because Vertul Kumar is unemployed, there is also problem in his marriage also not getting married. 5. In response to the aforestated application, the respondent submitted inter alia that after filing of said application seeking release, he had been searching for an appropriate place to shift his business but till the date of filing of the response, no proper place could be secured by the respondent. 6. The Prescribed Authority by its order dated 21.02.2011, rejected the application preferred by the appellant. However, in an appeal arising therefrom, the Appellate Authority by its order dated 30.06.2014, accepted the submissions made by the appellant and allowed the application for release preferred by the appellant. The Appellate Authority found that the bona fide requirement as pleaded by the appellant was genuine. The relevant observations of the Appellate Authority were: 30. In this way on the basis of the entire analysis, the court is of the view in regard to the bona fide requirement of the plaintiff does not have any such place or property available with him in addition to the disputed property where the Plaintiff/Appellant could get the independent business for livelihood of his unemployed son. The Plaintiff has the right that he should make the proper place available to his unemployed son for establishing his business. 31. In this way on the basis of the entire analysis, the Court is of the view that the application for eviction of the disputed property has been filed by the plaintiff for establishing his unemployed son in any business and that too in the circumstances where the son of the plaintiff is educated unemployed and the plaintiff does not have any commercial property then under these circumstances the requirement of the plaintiff for eviction of the disputed property will be immediately and will be considered to be bona fide. In this way, this Court is not in agreement with the finding of the lower court that the plaintiff does not have the immediate and bona fide requirement of the present shop. 7. Thereafter the issue of comparative hardship was also dealt with by the Appellate Authority and answered in favour of the appellant. 8. The matter was carried further by the respondent by filing Writ Petition No.1754 of 2014 under Article 227 of the Constitution of India. Said petition was allowed by the High Court principally on the ground that the son of the appellant for whose benefit the release was sought was assessed to Income Tax and was having income of Rs.1,14,508 per annum and therefore was not an unemployed person. The High Court thus found that no case was made out to maintain an application under Section 21(1)(a) of the Act. The writ petition was thus allowed and the application for release preferred by the appellant was dismissed. 9. In this appeal challenging the decision of the High Court, we have heard Mr. A.K.Sangal, learned Senior Advocate in support of the appeal and Mr. D.K. Garg, learned advocate for the respondent. 10. Section 21(1)(a) of the Act, under which the application for release was filed, reads as under: 21. Proceedings for release of building under occupation of tenant.- (1) The Prescribed Authority may, on an application of the landlord in that behalf, order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists namely- (a) that the building is bona fide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade or calling, or where the landlord is the trustee of a public charitable trust, for the objects of the trust ……… 11. It is quite clear that aforestated provision seeking release of the premises on the ground of bona fide requirement does not strictly require the landlord to be unemployed to maintain an action. All that the provision contemplates is that the requirement so pleaded by the landlord must be bona fide. 12. It is to be noted that the instant premises have been in the occupation of the tenant for more than 30 years and are situated in Jwalapur near Haridwar. The facts on record indicate that the appellant had suffered an accident and he genuinely wanted his son to be settled in business. It may be that the son of the appellant was having some income but that by itself would not disentitle him from claiming release of the premises on the ground of bona fide need. The need pleaded by the appellant was found to be genuine and was accepted by the appellate authority which is the final fact-finding authority. The issue with regard to comparative hardship was also answered in favour of the appellant. 13. In the circumstances, the High Court while exercising jurisdiction under Article 227 of the Constitution of India was not justified in upsetting the finding of fact rendered by the Appellant Authority.
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1[ds]11. It is quite clear that aforestated provision seeking release of the premises on the ground of bona fide requirement does not strictly require the landlord to be unemployed to maintain an action. All that the provision contemplates is that the requirement so pleaded by the landlord must be bona fide.12. It is to be noted that the instant premises have been in the occupation of the tenant for more than 30 years and are situated in Jwalapur near Haridwar. The facts on record indicate that the appellant had suffered an accident and he genuinely wanted his son to be settled in business. It may be that the son of the appellant was having some income but that by itself would not disentitle him from claiming release of the premises on the ground of bona fide need. The need pleaded by the appellant was found to be genuine and was accepted by the appellate authority which is the final fact-finding authority. The issue with regard to comparative hardship was also answered in favour of the appellant.13. In the circumstances, the High Court while exercising jurisdiction under Article 227 of the Constitution of India was not justified in upsetting the finding of fact rendered by the Appellant Authority.
| 1 | 1,409 | 221 |
### 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:
plaintiff does not have any property apart from the property in question in which he could settle him by getting his business started. The defendant does not have any requirement of the said shop. The shop is often closed and defendant mostly does the business of property dealing and he has occupied the property merely for name sake and he does not have any requirement of the property in question. 5.That the plaintiff wants to get his son Vertul Kumar settled by starting the business but the plaintiff does not have any other property apart of the property in question for starting the business for his son. Due to this reason, the plaintiff has immediate and legal and bonafide requirement of the property in question so that he could get his son settled by getting him in business and he could be relieved from his responsibility. 6.That because Vertul Kumar is unemployed, there is also problem in his marriage also not getting married. 5. In response to the aforestated application, the respondent submitted inter alia that after filing of said application seeking release, he had been searching for an appropriate place to shift his business but till the date of filing of the response, no proper place could be secured by the respondent. 6. The Prescribed Authority by its order dated 21.02.2011, rejected the application preferred by the appellant. However, in an appeal arising therefrom, the Appellate Authority by its order dated 30.06.2014, accepted the submissions made by the appellant and allowed the application for release preferred by the appellant. The Appellate Authority found that the bona fide requirement as pleaded by the appellant was genuine. The relevant observations of the Appellate Authority were: 30. In this way on the basis of the entire analysis, the court is of the view in regard to the bona fide requirement of the plaintiff does not have any such place or property available with him in addition to the disputed property where the Plaintiff/Appellant could get the independent business for livelihood of his unemployed son. The Plaintiff has the right that he should make the proper place available to his unemployed son for establishing his business. 31. In this way on the basis of the entire analysis, the Court is of the view that the application for eviction of the disputed property has been filed by the plaintiff for establishing his unemployed son in any business and that too in the circumstances where the son of the plaintiff is educated unemployed and the plaintiff does not have any commercial property then under these circumstances the requirement of the plaintiff for eviction of the disputed property will be immediately and will be considered to be bona fide. In this way, this Court is not in agreement with the finding of the lower court that the plaintiff does not have the immediate and bona fide requirement of the present shop. 7. Thereafter the issue of comparative hardship was also dealt with by the Appellate Authority and answered in favour of the appellant. 8. The matter was carried further by the respondent by filing Writ Petition No.1754 of 2014 under Article 227 of the Constitution of India. Said petition was allowed by the High Court principally on the ground that the son of the appellant for whose benefit the release was sought was assessed to Income Tax and was having income of Rs.1,14,508 per annum and therefore was not an unemployed person. The High Court thus found that no case was made out to maintain an application under Section 21(1)(a) of the Act. The writ petition was thus allowed and the application for release preferred by the appellant was dismissed. 9. In this appeal challenging the decision of the High Court, we have heard Mr. A.K.Sangal, learned Senior Advocate in support of the appeal and Mr. D.K. Garg, learned advocate for the respondent. 10. Section 21(1)(a) of the Act, under which the application for release was filed, reads as under: 21. Proceedings for release of building under occupation of tenant.- (1) The Prescribed Authority may, on an application of the landlord in that behalf, order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists namely- (a) that the building is bona fide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade or calling, or where the landlord is the trustee of a public charitable trust, for the objects of the trust ……… 11. It is quite clear that aforestated provision seeking release of the premises on the ground of bona fide requirement does not strictly require the landlord to be unemployed to maintain an action. All that the provision contemplates is that the requirement so pleaded by the landlord must be bona fide. 12. It is to be noted that the instant premises have been in the occupation of the tenant for more than 30 years and are situated in Jwalapur near Haridwar. The facts on record indicate that the appellant had suffered an accident and he genuinely wanted his son to be settled in business. It may be that the son of the appellant was having some income but that by itself would not disentitle him from claiming release of the premises on the ground of bona fide need. The need pleaded by the appellant was found to be genuine and was accepted by the appellate authority which is the final fact-finding authority. The issue with regard to comparative hardship was also answered in favour of the appellant. 13. In the circumstances, the High Court while exercising jurisdiction under Article 227 of the Constitution of India was not justified in upsetting the finding of fact rendered by the Appellant Authority.
### Response:
1
### Explanation:
11. It is quite clear that aforestated provision seeking release of the premises on the ground of bona fide requirement does not strictly require the landlord to be unemployed to maintain an action. All that the provision contemplates is that the requirement so pleaded by the landlord must be bona fide.12. It is to be noted that the instant premises have been in the occupation of the tenant for more than 30 years and are situated in Jwalapur near Haridwar. The facts on record indicate that the appellant had suffered an accident and he genuinely wanted his son to be settled in business. It may be that the son of the appellant was having some income but that by itself would not disentitle him from claiming release of the premises on the ground of bona fide need. The need pleaded by the appellant was found to be genuine and was accepted by the appellate authority which is the final fact-finding authority. The issue with regard to comparative hardship was also answered in favour of the appellant.13. In the circumstances, the High Court while exercising jurisdiction under Article 227 of the Constitution of India was not justified in upsetting the finding of fact rendered by the Appellant Authority.
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Gujarat Agro Industries Corpn. Ltd Vs. Muniicipal Corpn. Of Ahmedabad
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case of an appeal made against a ratable value the amount of the disputed tax claimed from the appellant, or the amount of the tax chargeable on the basis of the disputed ratable value, up to the date of filing of the appeal, has been deposited by the appellant with the Commissioner." 10. It will be seen that clause (d) aforesaid was in similar terms as clause (e) of Section 406(2) as it originally existed. Bombay High Court upheld the constitutional validity of Section 217 of the Bombay Municipal Corporation Act. Calcutta High Court in Chhatter Singh Baid and others v. Corporation of Calcutta and others, AIR 1984 Cal. 283 also took the same view. There it was sub-section (3A) of Section 183 of the Calcutta Municipal Act, 1951 which provided : "No appeal under this section shall be entertained unless the consolidated rate payable up to the date of prevention of the appeal on the valuation determined -(a) by an order under Section 182, in the case of an appeal to the Court to Small Causes;(b) by the decision of the Court of Small Causes, inthe case of an appeal to the High Court;has been deposited in the municipal office and such consolidated rate is continued to be deposited until the appeal is finally decided."Similar provisions existed in the Delhi Municipal Corporation Act, 1957. There it is Section 170 which is as under :170. Conditions of right of appeal. - No appeal shall be heard or determined under Section 169 unless -(a) the appeal is, in the case of a property tax, brought within thirty days next after the date of authentication of the assessment list under Section 124 (exclusive of the time requisite for obtaining a copy of the relevant entries therein) or, as the case may be, within thirty days of the date on which an amendment is finally made under Section 126, and, in the case of any other tax, within thirty days next after the date of the receipt of the notice of assessment or of alternation of assessment or, if no notice has been given, within thirty days after the date of the presentation of the first bill or, as the case may be, the first notice of demand in respect thereof.Provided that an appeal may be admitted after the expiration of the period prescribed therefor by this Section if the appellant satisfies the court that he had sufficient cause for not preferring the appeal within that period;(b) the amount, if any, in dispute in the appeal has been deposited by the appellant in the office of the Corporation." 11. A Full Bench of the Delhi High Court, by majority, upheld the constitutional validity of the aforesaid provision though there was also challenge to the same based on Article 14 of the Constitution. Appeal against the judgment of the Delhi High Court was taken to this Court which upheld the view of the Delhi High Court. The decision of this court is reported as Shyam Kishore and others v. Municipal Corporation of Delhi and another, 1993(1) SCC 22. This Court relied on its earlier decisions in Ganga Bai case and Anant Mills case. Reference was also made to another decision of this Court in Vijay Prakash D. Mehta/Shri Jawahar D. Mehta v. Collector of Customs (Preventive), Bombay, 1988(4) SCC 402 where Justice Sabyasachi Mukharji, J., speaking for the Court, said : "Right to appeal is neither an absolute right nor an ingredient of natural justice the principles of which must be followed in all judicial and quasi-judicial adjudications. The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant." 12. It is not necessary for us to refer to other decisions asserting the same principle time and again. When the statement of law is so clear, we find no difficulty in upholding the vires of clause (e) of sub-section (2) of Section 406 read with proviso thereto. Any challenge to its constitutional validity on the ground that onerous conditions have been imposed and right to appeal has become illusory must be negatived. 13. We also note that under clause (e) of sub-section (2) of Section 406, a complaint lies to the Municipal Commissioner against imposition of any property tax and only after that when the complaint is disposed of that appeal can be filed. Appeal to the Court as provided in clause (e) may appear to be rather a second appeal. Then under Section 406 of the Act provisions exist for referring the matter to arbitration. Under sub-section (1) of Section 408 where any person aggrieved by any order fixing or charging any rateable value or tax under the Act desires that any matter in difference between him and the other parties interested in such order should be referred to arbitration, then, if all such parties agree to do so, they may apply to the Court for an order of reference on such matter and when such an order is made provisions relating to arbitration in suits shall apply. That apart, if a person cannot avail of the right of appeal under Section 406 of the Act, other remedies are available to him under the law. In that case, it may not be possible for the Municipal Corporation to contend that an alternative remedy of appeal exist under Section 406 of the Act. 14. When leave was granted in these appeals by order dated December 12, 1980 this Court granted stay on the condition that seventy-five per cent of the tax is deposited with the Municipal Corporation within two months from that date and on such deposit being made, the appeals be heard and disposed of (by the Judge) and we believe by this time the appeals filed before the Judge under Section 406 must have been disposed of. 15. When the arguments stated in these matters, on the statement of learned Counsel for the appellant two appeals bearing Nos. 3018-19/80 were dismissed as withdrawn. 16.
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0[ds]It is not necessary for us to refer to other decisions asserting the same principle time and again. When the statement of law is so clear, we find no difficulty in upholding the vires of clause (e) of sub-section (2) of Section 406 read with proviso thereto. Any challenge to its constitutional validity on the ground that onerous conditions have been imposed and right to appeal has become illusory must bealso note that under clause (e) of sub-section (2) of Section 406, a complaint lies to the Municipal Commissioner against imposition of any property tax and only after that when the complaint is disposed of that appeal can be filed. Appeal to the Court as provided in clause (e) may appear to be rather a second appeal. Then under Section 406 of the Act provisions exist for referring the matter to arbitration. Under sub-section (1) of Section 408 where any person aggrieved by any order fixing or charging any rateable value or tax under the Act desires that any matter in difference between him and the other parties interested in such order should be referred to arbitration, then, if all such parties agree to do so, they may apply to the Court for an order of reference on such matter and when such an order is made provisions relating to arbitration in suits shall apply. That apart, if a person cannot avail of the right of appeal under Section 406 of the Act, other remedies are available to him under the law. In that case, it may not be possible for the Municipal Corporation to contend that an alternative remedy of appeal exist under Section 406 of theleave was granted in these appeals by order dated December 12, 1980 this Court granted stay on the condition that seventy-five per cent of the tax is deposited with the Municipal Corporation within two months from that date and on such deposit being made, the appeals be heard and disposed of (by the Judge) and we believe by this time the appeals filed before the Judge under Section 406 must have been disposedthe arguments stated in these matters, on the statement of learned Counsel for the appellant two appeals bearing Nos. 3018-19/80 were dismissed as withdrawn.
| 0 | 3,708 | 412 |
### 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 of an appeal made against a ratable value the amount of the disputed tax claimed from the appellant, or the amount of the tax chargeable on the basis of the disputed ratable value, up to the date of filing of the appeal, has been deposited by the appellant with the Commissioner." 10. It will be seen that clause (d) aforesaid was in similar terms as clause (e) of Section 406(2) as it originally existed. Bombay High Court upheld the constitutional validity of Section 217 of the Bombay Municipal Corporation Act. Calcutta High Court in Chhatter Singh Baid and others v. Corporation of Calcutta and others, AIR 1984 Cal. 283 also took the same view. There it was sub-section (3A) of Section 183 of the Calcutta Municipal Act, 1951 which provided : "No appeal under this section shall be entertained unless the consolidated rate payable up to the date of prevention of the appeal on the valuation determined -(a) by an order under Section 182, in the case of an appeal to the Court to Small Causes;(b) by the decision of the Court of Small Causes, inthe case of an appeal to the High Court;has been deposited in the municipal office and such consolidated rate is continued to be deposited until the appeal is finally decided."Similar provisions existed in the Delhi Municipal Corporation Act, 1957. There it is Section 170 which is as under :170. Conditions of right of appeal. - No appeal shall be heard or determined under Section 169 unless -(a) the appeal is, in the case of a property tax, brought within thirty days next after the date of authentication of the assessment list under Section 124 (exclusive of the time requisite for obtaining a copy of the relevant entries therein) or, as the case may be, within thirty days of the date on which an amendment is finally made under Section 126, and, in the case of any other tax, within thirty days next after the date of the receipt of the notice of assessment or of alternation of assessment or, if no notice has been given, within thirty days after the date of the presentation of the first bill or, as the case may be, the first notice of demand in respect thereof.Provided that an appeal may be admitted after the expiration of the period prescribed therefor by this Section if the appellant satisfies the court that he had sufficient cause for not preferring the appeal within that period;(b) the amount, if any, in dispute in the appeal has been deposited by the appellant in the office of the Corporation." 11. A Full Bench of the Delhi High Court, by majority, upheld the constitutional validity of the aforesaid provision though there was also challenge to the same based on Article 14 of the Constitution. Appeal against the judgment of the Delhi High Court was taken to this Court which upheld the view of the Delhi High Court. The decision of this court is reported as Shyam Kishore and others v. Municipal Corporation of Delhi and another, 1993(1) SCC 22. This Court relied on its earlier decisions in Ganga Bai case and Anant Mills case. Reference was also made to another decision of this Court in Vijay Prakash D. Mehta/Shri Jawahar D. Mehta v. Collector of Customs (Preventive), Bombay, 1988(4) SCC 402 where Justice Sabyasachi Mukharji, J., speaking for the Court, said : "Right to appeal is neither an absolute right nor an ingredient of natural justice the principles of which must be followed in all judicial and quasi-judicial adjudications. The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant." 12. It is not necessary for us to refer to other decisions asserting the same principle time and again. When the statement of law is so clear, we find no difficulty in upholding the vires of clause (e) of sub-section (2) of Section 406 read with proviso thereto. Any challenge to its constitutional validity on the ground that onerous conditions have been imposed and right to appeal has become illusory must be negatived. 13. We also note that under clause (e) of sub-section (2) of Section 406, a complaint lies to the Municipal Commissioner against imposition of any property tax and only after that when the complaint is disposed of that appeal can be filed. Appeal to the Court as provided in clause (e) may appear to be rather a second appeal. Then under Section 406 of the Act provisions exist for referring the matter to arbitration. Under sub-section (1) of Section 408 where any person aggrieved by any order fixing or charging any rateable value or tax under the Act desires that any matter in difference between him and the other parties interested in such order should be referred to arbitration, then, if all such parties agree to do so, they may apply to the Court for an order of reference on such matter and when such an order is made provisions relating to arbitration in suits shall apply. That apart, if a person cannot avail of the right of appeal under Section 406 of the Act, other remedies are available to him under the law. In that case, it may not be possible for the Municipal Corporation to contend that an alternative remedy of appeal exist under Section 406 of the Act. 14. When leave was granted in these appeals by order dated December 12, 1980 this Court granted stay on the condition that seventy-five per cent of the tax is deposited with the Municipal Corporation within two months from that date and on such deposit being made, the appeals be heard and disposed of (by the Judge) and we believe by this time the appeals filed before the Judge under Section 406 must have been disposed of. 15. When the arguments stated in these matters, on the statement of learned Counsel for the appellant two appeals bearing Nos. 3018-19/80 were dismissed as withdrawn. 16.
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0
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It is not necessary for us to refer to other decisions asserting the same principle time and again. When the statement of law is so clear, we find no difficulty in upholding the vires of clause (e) of sub-section (2) of Section 406 read with proviso thereto. Any challenge to its constitutional validity on the ground that onerous conditions have been imposed and right to appeal has become illusory must bealso note that under clause (e) of sub-section (2) of Section 406, a complaint lies to the Municipal Commissioner against imposition of any property tax and only after that when the complaint is disposed of that appeal can be filed. Appeal to the Court as provided in clause (e) may appear to be rather a second appeal. Then under Section 406 of the Act provisions exist for referring the matter to arbitration. Under sub-section (1) of Section 408 where any person aggrieved by any order fixing or charging any rateable value or tax under the Act desires that any matter in difference between him and the other parties interested in such order should be referred to arbitration, then, if all such parties agree to do so, they may apply to the Court for an order of reference on such matter and when such an order is made provisions relating to arbitration in suits shall apply. That apart, if a person cannot avail of the right of appeal under Section 406 of the Act, other remedies are available to him under the law. In that case, it may not be possible for the Municipal Corporation to contend that an alternative remedy of appeal exist under Section 406 of theleave was granted in these appeals by order dated December 12, 1980 this Court granted stay on the condition that seventy-five per cent of the tax is deposited with the Municipal Corporation within two months from that date and on such deposit being made, the appeals be heard and disposed of (by the Judge) and we believe by this time the appeals filed before the Judge under Section 406 must have been disposedthe arguments stated in these matters, on the statement of learned Counsel for the appellant two appeals bearing Nos. 3018-19/80 were dismissed as withdrawn.
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Thakur Prasad Sao Etc Vs. Member, Board of Revenue and Others
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relating to excisable articles other than opium." It has been stated in t he preface to Volume III that it consists of the Boards "instructions with regard to excisable articles other than opium" and that references have been made to the Government Rules and the Boards Rules having the force of law. There is however no such reference to any rule in regard to instructions Nos. 130 and 93. But quite apart from the question whether these instructions were legally enforceable, we have examined the question whether they could justify the argument that the appellants were entitled to reduction of the amounts of the fees payable by them.12. Instruction No. 93 mentions the circumstances when it would be advisable to accept bids other than the highest. It states that it is not an absolute rule that the highest bids must, on every occasion, be accepted. It states further that the presiding officer at an auction "may also refuse bids which he considers to be purely speculative or which are the outcome of private enmity", and that what is desired is not the highest fee obtainable, but a fee that can fairly be paid out of the profits of a shop without recourse to malpractices. There is there-fore nothing in the rule which could be said to give rise to a right in favour of the appellants for reduction of the amounts demanded from them. Instruction No. 130 merely states that reduction of licence fees, during the currency o f a licence, can be made by the Board under section 39 of the Act. It does not therefore advance the case of the appellants for, under that section, the Board has been given that power, "if it thinks fit", to order a reduction of the amount of fees payable in respect of a licence, "during the unexpired portion of the grant" which is not the case of the appellants. In fact all that has been argued on behalf of the appellants is that as the instructions contained in the note appended to paragraph 130 of the Regulations have not been complied with, their legal right to claim the benefit of the note has wrongly been denied to them. The note reads as follows, -"Note-ordinarily it is not the policy of Government to allow reduction in excise settlements. The licensees to a large extent, have only themselves to thank if they exceed in their bidding the figure which should return them a reasonable profit under normal conditions, and they are not therefore entitled to any reduction of fees as of right. The observance of this principle is the more important because it must be remembered that each remission is likely to aggravate the evil and encourage speculative bidding in the hope that should the speculation turn out a failure, Government will not insist on full payment. A remission should not be granted merely because working at a dead loss has -. been actually proved. Each case should be dealt with on its own merits. Where, for example, it is proved that the Collector has not fulfilled his duty in refusing to allow manifestly speculative bids and has failed to stop the bidding when a figure has been reached which, under normal conditions, might be expected to return a reasonable rate of profit to the vendor, the question would be whether the action of the Collector was so flagrantly opposed to the principles enunciated from time to time by Government as to necessitate remedial action. Such action should not take the form of any promise of resettlement with the existing licensees. It can only take the form of a reduction in the amount of the existing licensees.13. It should not be very difficult for an officer in a contract supply area to realise the stage at which bidding becomes purely speculative. He knows the issues of spirit during the previous year and the cost to the vendor including duty, carriage, establishment charges and the like, and should thus be able to estimate the figure beyond which a prudent man would not bid. If after warning the bidder, that this point has been reached, the latter still wishes to take the risk no case for remission can arise. The case is, however, different where exceptional reasons which would not at the time be. foreseen, operate adversely to the interest of the licensee but at the same time it is not the duty of Government to safe guard licensees from the effects of their own imprudence or ignorance."It would appear that there is nothing in the note to justify the argument that it gave rise to a right in favour of the appellants to obtain a reduction of the fees. As has been pointed out, that was clearly a matter within the discretion of the Board of Revenue under section 39, and the wordings of the note appended to paragraph 130 could not overreach that provision of the law. Moreover, the question whether the circumstances mentioned in the note were at all in existence in the case of the appeals under consideration, was a question of fact which could not be tried in these proceedings. The decision in Rohtas Industries Ltd. v. S. D. Agarwal and another ([1968] 3 S.C.R. 108.) to which our attention has been invited on behalf of the appellants, can be of no avail to them.14. As has been stated, the writ petition which has given rise to Civil Appeal No. 1105 of 1975 raised the question whether the refund of fees claimed by the appellant was permissible on the ground that there was no quid pro quo for the same. The High Court has rightly rejected that contention for the reason that the amounts in question were payable for the licences which had been granted for the exclusive privilege in question and, as has been shown, that argument is no longer available to the appellant in view of this Courts decisions in Nashirwars case (supra) and Har Shankars case (supra).
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0[ds]7. We have described the essential features of the out still system, and there can be no doubt that the holder of a licence under the system acquires the right to manufacture country spirit in his outstill and sell it by retail "in his premises" without any restriction on the strength or pr ice at which the spirit is manufactured or sold. Moreover he has the monopoly of manufacturing and supplying country liquor within his area. The right is therefore clearly an exclusive privilege within the meaning of section 22(1) (d) of the Act and it is futile to contend that the licences in question were merely licences for the retail sale o f spirit for consumption on the vendors premises within the meaning of section 30 of the Act. The High Court was therefore quite correct in taking that view.It may be mentioned that the appellants have not produced their licences in support of the contention that exclusive privilege of the nature referred to above was not granted to them even though the licences w ere for establishing outstills in the area covered by them. It is however not disputed that the licences were granted in Form 30 (Volume II, Part I, Bihar and Orissa, Excise Manual) on the condition that the appellants would pay to the government, in advance. the monthly fee mentioned therein. It is nobodys case that the licences were cancelled or suspended under section 42 of the Act for any of the reasons mentioned in the section, or that the licences were withdrawn under section 43 so as to entitle the appellants to remission of the fee payable in respect of them or to payment of compensation in addition to such remission, or to refund of the fee paid in advance. It is also not the case of the appellants that t hey surrendered their licences within the meaning of(1) of section 44 so as to justify the remittance of the fee payable by them, or paid by them in advance. In fact it has clearly been provided in(2) of section 44 that t he provisions of subsection (1) shall not apply in the case of a licence for the sale of any country liquor in the exercise of an exclusive privilege granted under section 22. It is true that in its judgment under appeal (in Civil Appeals Nos.of 1975) the High Court has observed that the petitioner before it was at liberty to surrender the license, but it appears that in taking that view it did not notice(2) of section 44 even though it had held that what was granted was an exclusive privilege under section 22. The licences of the appellants therefore remained in force for the periods for which they were granted and, by virtue of the express provisions of section 45, they could have no claim to compensation.In such a situation, counsel for the appellants have placed considerable reliance on paragraph 121 of the Manual and have argued that the High Court erred in taking the view that the instructions contained in it had no statutory force and its benefit was not available to the appellants. Reliance in this connection has been placed on Sukhdev Singh and others v. Bhagatram Sardar Singh Raghuvanshi and another([1975] 3 S.C.R 619.), Laljee Dubey and others v. Union of India and others([1974] 2 S.C.R. 249.) Union of India v. K. P. Joseph and others([1973] 2 S.C.R. 75.).It would thus appear that thedeals with the "deposits" made immediately on account of advance fees, the consequences of the failures to make such payment and the return of those "deposits" to the person to whom the licence may subsequently be refused because (1) the Magistrate declines to grant him a certificate or because he is unable to obtain suitable premises in spite of his bona fide endeavors or (ii) for any other adequate reason. But it was not the case of the appellants that the licences were "subsequently refused" to them for any reason whatsoever. So even if it were assumed, for the sake of argument, that the instructions contained in paragraph 121 were binding on the authorities concerned, that would not matter for purposes of the present controversy as it does not relate to refund of the deposits referred to in paragraph 121. In this vie w of the matter, it is not necessary for us to examine here the larger question whether the instructions contained in the Manual were made under any provision of the law and created any rights in favour of persons whose bids were accepted at public auctions of the shops.It will be recalled that it was an incident of the outstill system that the holder of an outstill licence was allowed to manufacture country spirit within a "certain area" and he paid a certain sum of money per mensem for manufacturing country spirit in his outstill and "selling it by retail on his premises". It was therefore permissible for appellant Ayodhya Prasad to locate the shop at Bharbharia or at some other suitable place within his area, with the permission of the Collector. The notice which had been issued for the public auction is on the record and condition No. 5 thereof expressly states that the department would not be responsible for providing the place for the location of the outstill. Moreover it was expressly stated that the outstill at Bharbharia would be settled purely as a temporary measure on condition that an undisputed site was made available for it. There is therefore nothing wrong with the view taken by the High Court that the responsibility for finding a suitable site was of the appellant, and there is no justification for the argument that nothing was payable by him because he could not locate the shop in spite of his best efforts. It may be that the Deputy Commissioner recommended his case for remission, but that I would not matter when the appellant was liable to pay the money under the law governing hisargument is however futile for we have given our reasons for holding that what was granted to the appellants was the exclusive privilege of manufacturing and selling country liquor within the meaning of section 22(1) (d) of the Act, and it has been expressly provided in section 29 that it would be permissible for the State Government to accept payment of a sum in "consideration" of the exclusive privilege under section 22. The decisions of this Court in Nashirwars case and Har Shankars case have set any controversy in 41 this respect at rest, so that it is well settled that as the State has the exclusive right and privilege of manufacturing and selling liquor, it has the power to hold a public auction for the grant of such a right or privilege and to accept the payment of a sum therefore. It was therefore permissible for the State to frame rules for the grant of licences on payment of fees fixed by auction, for that was only a mode or medium for ascertaining the best price for the grant of the exclusive privilege of manufacturing and sellingis however no such reference to any rule in regard to instructions Nos. 130 and 93. But quite apart from the question whether these instructions were legally enforceable, we have examined the question whether they could justify the argument that the appellants were entitled to reduction of the amounts of the fees payable by them.It should not be very difficult for an officer in a contract supply area to realise the stage at which bidding becomes purely speculative. He knows the issues of spirit during the previous year and the cost to the vendor including duty, carriage, establishment charges and the like, and should thus be able to estimate the figure beyond which a prudent man would not bid. If after warning the bidder, that this point has been reached, the latter still wishes to take the risk no case for remission can arise. The case is, however, different where exceptional reasons which would not at the time be. foreseen, operate adversely to the interest of the licensee but at the same time it is not the duty of Government to safe guard licensees from the effects of their own imprudence or ignorance."It would appear that there is nothing in the note to justify the argument that it gave rise to a right in favour of the appellants to obtain a reduction of the fees. As has been pointed out, that was clearly a matter within the discretion of the Board of Revenue under section 39, and the wordings of the note appended to paragraph 130 could not overreach that provision of the law. Moreover, the question whether the circumstances mentioned in the note were at all in existence in the case of the appeals under consideration, was a question of fact which could not be tried in these proceedings. The decision in Rohtas Industries Ltd. v. S. D. Agarwal and another ([1968] 3 S.C.R. 108.) to which our attention has been invited on behalf of the appellants, can be of no avail to them.14. As has been stated, the writ petition which has given rise to Civil Appeal No. 1105 of 1975 raised the question whether the refund of fees claimed by the appellant was permissible on the ground that there was no quid pro quo for the same. The High Court has rightly rejected that contention for the reason that the amounts in question were payable for the licences which had been granted for the exclusive privilege in question and, as has been shown, that argument is no longer available to the appellant in view of this Courts decisions in Nashirwars case (supra) and Har Shankars case (supra).
| 0 | 4,743 | 1,787 |
### 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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relating to excisable articles other than opium." It has been stated in t he preface to Volume III that it consists of the Boards "instructions with regard to excisable articles other than opium" and that references have been made to the Government Rules and the Boards Rules having the force of law. There is however no such reference to any rule in regard to instructions Nos. 130 and 93. But quite apart from the question whether these instructions were legally enforceable, we have examined the question whether they could justify the argument that the appellants were entitled to reduction of the amounts of the fees payable by them.12. Instruction No. 93 mentions the circumstances when it would be advisable to accept bids other than the highest. It states that it is not an absolute rule that the highest bids must, on every occasion, be accepted. It states further that the presiding officer at an auction "may also refuse bids which he considers to be purely speculative or which are the outcome of private enmity", and that what is desired is not the highest fee obtainable, but a fee that can fairly be paid out of the profits of a shop without recourse to malpractices. There is there-fore nothing in the rule which could be said to give rise to a right in favour of the appellants for reduction of the amounts demanded from them. Instruction No. 130 merely states that reduction of licence fees, during the currency o f a licence, can be made by the Board under section 39 of the Act. It does not therefore advance the case of the appellants for, under that section, the Board has been given that power, "if it thinks fit", to order a reduction of the amount of fees payable in respect of a licence, "during the unexpired portion of the grant" which is not the case of the appellants. In fact all that has been argued on behalf of the appellants is that as the instructions contained in the note appended to paragraph 130 of the Regulations have not been complied with, their legal right to claim the benefit of the note has wrongly been denied to them. The note reads as follows, -"Note-ordinarily it is not the policy of Government to allow reduction in excise settlements. The licensees to a large extent, have only themselves to thank if they exceed in their bidding the figure which should return them a reasonable profit under normal conditions, and they are not therefore entitled to any reduction of fees as of right. The observance of this principle is the more important because it must be remembered that each remission is likely to aggravate the evil and encourage speculative bidding in the hope that should the speculation turn out a failure, Government will not insist on full payment. A remission should not be granted merely because working at a dead loss has -. been actually proved. Each case should be dealt with on its own merits. Where, for example, it is proved that the Collector has not fulfilled his duty in refusing to allow manifestly speculative bids and has failed to stop the bidding when a figure has been reached which, under normal conditions, might be expected to return a reasonable rate of profit to the vendor, the question would be whether the action of the Collector was so flagrantly opposed to the principles enunciated from time to time by Government as to necessitate remedial action. Such action should not take the form of any promise of resettlement with the existing licensees. It can only take the form of a reduction in the amount of the existing licensees.13. It should not be very difficult for an officer in a contract supply area to realise the stage at which bidding becomes purely speculative. He knows the issues of spirit during the previous year and the cost to the vendor including duty, carriage, establishment charges and the like, and should thus be able to estimate the figure beyond which a prudent man would not bid. If after warning the bidder, that this point has been reached, the latter still wishes to take the risk no case for remission can arise. The case is, however, different where exceptional reasons which would not at the time be. foreseen, operate adversely to the interest of the licensee but at the same time it is not the duty of Government to safe guard licensees from the effects of their own imprudence or ignorance."It would appear that there is nothing in the note to justify the argument that it gave rise to a right in favour of the appellants to obtain a reduction of the fees. As has been pointed out, that was clearly a matter within the discretion of the Board of Revenue under section 39, and the wordings of the note appended to paragraph 130 could not overreach that provision of the law. Moreover, the question whether the circumstances mentioned in the note were at all in existence in the case of the appeals under consideration, was a question of fact which could not be tried in these proceedings. The decision in Rohtas Industries Ltd. v. S. D. Agarwal and another ([1968] 3 S.C.R. 108.) to which our attention has been invited on behalf of the appellants, can be of no avail to them.14. As has been stated, the writ petition which has given rise to Civil Appeal No. 1105 of 1975 raised the question whether the refund of fees claimed by the appellant was permissible on the ground that there was no quid pro quo for the same. The High Court has rightly rejected that contention for the reason that the amounts in question were payable for the licences which had been granted for the exclusive privilege in question and, as has been shown, that argument is no longer available to the appellant in view of this Courts decisions in Nashirwars case (supra) and Har Shankars case (supra).
### Response:
0
### Explanation:
to obtain suitable premises in spite of his bona fide endeavors or (ii) for any other adequate reason. But it was not the case of the appellants that the licences were "subsequently refused" to them for any reason whatsoever. So even if it were assumed, for the sake of argument, that the instructions contained in paragraph 121 were binding on the authorities concerned, that would not matter for purposes of the present controversy as it does not relate to refund of the deposits referred to in paragraph 121. In this vie w of the matter, it is not necessary for us to examine here the larger question whether the instructions contained in the Manual were made under any provision of the law and created any rights in favour of persons whose bids were accepted at public auctions of the shops.It will be recalled that it was an incident of the outstill system that the holder of an outstill licence was allowed to manufacture country spirit within a "certain area" and he paid a certain sum of money per mensem for manufacturing country spirit in his outstill and "selling it by retail on his premises". It was therefore permissible for appellant Ayodhya Prasad to locate the shop at Bharbharia or at some other suitable place within his area, with the permission of the Collector. The notice which had been issued for the public auction is on the record and condition No. 5 thereof expressly states that the department would not be responsible for providing the place for the location of the outstill. Moreover it was expressly stated that the outstill at Bharbharia would be settled purely as a temporary measure on condition that an undisputed site was made available for it. There is therefore nothing wrong with the view taken by the High Court that the responsibility for finding a suitable site was of the appellant, and there is no justification for the argument that nothing was payable by him because he could not locate the shop in spite of his best efforts. It may be that the Deputy Commissioner recommended his case for remission, but that I would not matter when the appellant was liable to pay the money under the law governing hisargument is however futile for we have given our reasons for holding that what was granted to the appellants was the exclusive privilege of manufacturing and selling country liquor within the meaning of section 22(1) (d) of the Act, and it has been expressly provided in section 29 that it would be permissible for the State Government to accept payment of a sum in "consideration" of the exclusive privilege under section 22. The decisions of this Court in Nashirwars case and Har Shankars case have set any controversy in 41 this respect at rest, so that it is well settled that as the State has the exclusive right and privilege of manufacturing and selling liquor, it has the power to hold a public auction for the grant of such a right or privilege and to accept the payment of a sum therefore. It was therefore permissible for the State to frame rules for the grant of licences on payment of fees fixed by auction, for that was only a mode or medium for ascertaining the best price for the grant of the exclusive privilege of manufacturing and sellingis however no such reference to any rule in regard to instructions Nos. 130 and 93. But quite apart from the question whether these instructions were legally enforceable, we have examined the question whether they could justify the argument that the appellants were entitled to reduction of the amounts of the fees payable by them.It should not be very difficult for an officer in a contract supply area to realise the stage at which bidding becomes purely speculative. He knows the issues of spirit during the previous year and the cost to the vendor including duty, carriage, establishment charges and the like, and should thus be able to estimate the figure beyond which a prudent man would not bid. If after warning the bidder, that this point has been reached, the latter still wishes to take the risk no case for remission can arise. The case is, however, different where exceptional reasons which would not at the time be. foreseen, operate adversely to the interest of the licensee but at the same time it is not the duty of Government to safe guard licensees from the effects of their own imprudence or ignorance."It would appear that there is nothing in the note to justify the argument that it gave rise to a right in favour of the appellants to obtain a reduction of the fees. As has been pointed out, that was clearly a matter within the discretion of the Board of Revenue under section 39, and the wordings of the note appended to paragraph 130 could not overreach that provision of the law. Moreover, the question whether the circumstances mentioned in the note were at all in existence in the case of the appeals under consideration, was a question of fact which could not be tried in these proceedings. The decision in Rohtas Industries Ltd. v. S. D. Agarwal and another ([1968] 3 S.C.R. 108.) to which our attention has been invited on behalf of the appellants, can be of no avail to them.14. As has been stated, the writ petition which has given rise to Civil Appeal No. 1105 of 1975 raised the question whether the refund of fees claimed by the appellant was permissible on the ground that there was no quid pro quo for the same. The High Court has rightly rejected that contention for the reason that the amounts in question were payable for the licences which had been granted for the exclusive privilege in question and, as has been shown, that argument is no longer available to the appellant in view of this Courts decisions in Nashirwars case (supra) and Har Shankars case (supra).
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Trustees Of Port Of Madras Vs. Nagavedu Lungi And Company And Ors
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1. The appellant was the plaintiff in suit - OS No. 3980 of 1969 in City Civil Court at Madras, while Respondents 1 to 5 were Defendants 1 to 5 therein. That suit had been instituted by the plaintiff - the trustees of Port of Madras against the defendants for recovery of demurrage charges and other incidental charges in respect of certain textile goods in their custody in the customs area of the Port of Madras. Defendant 1 was the consignor-exporter of those goods. Defendant 2 was the shipping agent who had to put those goods on board the ship for their export, Defendant 5 is the alleged successor of Defendant 2 firm. Defendant 4 is the Collector of Customs who on behalf of the Union of India, Defendant 3 was responsible for illegal detention of the goods in the customs area of the Port of Madras giving rise to the claim for demurrage charges and other incidental charges by the plaintiff. 2. The City Civil Court dismissed the suit again all the defendants as in its view the consignor-exporter of those goods could not be held liable for demurrage charges and incidental charges payable for those goods when they had been illegally detained in the customs area of the Port of Madras by Respondent 4, purporting to exercise his powers under the Customs Act. The plaintiff questioned the correctness of that judgment and decree of the City Civil Court dismissing its suit against all the defendants, by presenting an appeal therefrom before the High Court of Madras in Appeal No. 494 of 1973. But that appeal was also dismissed. 3. It is the judgment and decree of dismissal of that appeal by which the judgment and decree of dismissal of the suit by the City Civil Court is affirmed, which is appealed against in the Court in the present appeal of the plaintiff. 4. We have heard learned counsel for the parities in the appeal. A three Judge Bench of this Court in International Airports Authority of India v. Grand Slam International has rule that the importer consignee of goods cannot avoid his liability to pay demurrage charges and other incidental charges in respect of its goods illegally detained in the customs area of the airport by the Customs Authorities under the Customs Act. The said ruling of this Court as regards liability for demurrage charges and other incidental charges by importer-consignee of goods illegally detained in the customs area of the airport by the Customs Authorities applies to the liability to pay demurrage charges or incidental charges by the exporter-congener of goods illegally detained in the customs area of the seaport by the Customs Authorities under the Customs Act, for such goods illegally detained by the Customs Authorities, the fact that they belonged to either the importer-consignee or exporter-consignor does not make any difference. .
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1[ds]4. We have heard learned counsel for the parities in the appeal. A three Judge Bench of this Court in International Airports Authority of India v. Grand Slam International has rule that the importer consignee of goods cannot avoid his liability to pay demurrage charges and other incidental charges in respect of its goods illegally detained in the customs area of the airport by the Customs Authorities under the Customs Act. The said ruling of this Court as regards liability for demurrage charges and other incidental charges byof goods illegally detained in the customs area of the airport by the Customs Authorities applies to the liability to pay demurrage charges or incidental charges by theof goods illegally detained in the customs area of the seaport by the Customs Authorities under the Customs Act, for such goods illegally detained by the Customs Authorities, the fact that they belonged to either theor does not make any difference
| 1 | 504 | 165 |
### 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:
1. The appellant was the plaintiff in suit - OS No. 3980 of 1969 in City Civil Court at Madras, while Respondents 1 to 5 were Defendants 1 to 5 therein. That suit had been instituted by the plaintiff - the trustees of Port of Madras against the defendants for recovery of demurrage charges and other incidental charges in respect of certain textile goods in their custody in the customs area of the Port of Madras. Defendant 1 was the consignor-exporter of those goods. Defendant 2 was the shipping agent who had to put those goods on board the ship for their export, Defendant 5 is the alleged successor of Defendant 2 firm. Defendant 4 is the Collector of Customs who on behalf of the Union of India, Defendant 3 was responsible for illegal detention of the goods in the customs area of the Port of Madras giving rise to the claim for demurrage charges and other incidental charges by the plaintiff. 2. The City Civil Court dismissed the suit again all the defendants as in its view the consignor-exporter of those goods could not be held liable for demurrage charges and incidental charges payable for those goods when they had been illegally detained in the customs area of the Port of Madras by Respondent 4, purporting to exercise his powers under the Customs Act. The plaintiff questioned the correctness of that judgment and decree of the City Civil Court dismissing its suit against all the defendants, by presenting an appeal therefrom before the High Court of Madras in Appeal No. 494 of 1973. But that appeal was also dismissed. 3. It is the judgment and decree of dismissal of that appeal by which the judgment and decree of dismissal of the suit by the City Civil Court is affirmed, which is appealed against in the Court in the present appeal of the plaintiff. 4. We have heard learned counsel for the parities in the appeal. A three Judge Bench of this Court in International Airports Authority of India v. Grand Slam International has rule that the importer consignee of goods cannot avoid his liability to pay demurrage charges and other incidental charges in respect of its goods illegally detained in the customs area of the airport by the Customs Authorities under the Customs Act. The said ruling of this Court as regards liability for demurrage charges and other incidental charges by importer-consignee of goods illegally detained in the customs area of the airport by the Customs Authorities applies to the liability to pay demurrage charges or incidental charges by the exporter-congener of goods illegally detained in the customs area of the seaport by the Customs Authorities under the Customs Act, for such goods illegally detained by the Customs Authorities, the fact that they belonged to either the importer-consignee or exporter-consignor does not make any difference. .
### Response:
1
### Explanation:
4. We have heard learned counsel for the parities in the appeal. A three Judge Bench of this Court in International Airports Authority of India v. Grand Slam International has rule that the importer consignee of goods cannot avoid his liability to pay demurrage charges and other incidental charges in respect of its goods illegally detained in the customs area of the airport by the Customs Authorities under the Customs Act. The said ruling of this Court as regards liability for demurrage charges and other incidental charges byof goods illegally detained in the customs area of the airport by the Customs Authorities applies to the liability to pay demurrage charges or incidental charges by theof goods illegally detained in the customs area of the seaport by the Customs Authorities under the Customs Act, for such goods illegally detained by the Customs Authorities, the fact that they belonged to either theor does not make any difference
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Rananjaya Singh Vs. Baijnath Singh And Others
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electors and 1 Polling Agent and 2 relief agents for each polling booth and 1 messenger at each polling booth. The contravention of the provisions of Sections 77 read with Rr. 117 and 118 and Schedules V and VI is made a corrupt practice by Section 123(7). Section 123(7) clearly shows that in order to amount to a corrupt practice the excess expenditure must be incurred or authorised by a candidate or his agent and the employment of extra persons must likewise be by a candidate or his agent.3. The charge against the appellant was interalia, that the Manager, Assistant Manager, 20 Ziladars of Amethi estate and their peons on orderlies had worked for the appellant in connection with the election. The tribunal took the view - we think quite erroneously - that although the estate belonged to the father of the appellant, nevertheless, as the appellant was the heir apparent and actually looked after the estate on behalf of the old and infirm proprietor, these servants of the estate were "virtually" his "own" servants and could properly be regarded as having been employed for payment by the appellant.The learned Advocate appearing for the respondent frankly and properly conceded that he could not support this part of the finding of the tribunal. He, however, contended, relying on the language used in Section 77, that if the number of persons who worked for payment in connection with the election exceeded the maximum number specified in Scheduled VI, the case fell within the mischief of the relevant sections and the rules, no matter who employed them or who made payments to them. It is true that Section 77 uses the words "who may be employed for payment" without indicating by whom employed or paid but it must be borne in mind that the gist of a corrupt practice as defined in Section 123(7) is that the employment of extra persons and the incurring or authorising of excess expenditure must be by the candidate or his agent. The provisions of Rr. 117 and 118 are to be read in the light of this definition of a corrupt practice.Indeed, these rules follows the language of Section 123(7) in that they prohibit the employment of persons other than or in addition or those specified in Scheduled VI and the incurring or authorising of expenditure in excess of the amount specified in Scheduled V and in both cases by a candidate or his agent. Section 77 must, therefore, be read in a manner consonant with Section 123(7) and Rr. 117 and 118. In this view of the matter the observation made by Phillimore, J. in ---Joseph Forster Wilson v. Sir Christopher Furness, 6 OMally and Hardcastles Report of Election Cases, p.1 at p. 6 (A). relied on by the appellant and referred to in the judgment of the tribunal are quite apposite.There can be no doubt that in the eye of the law these extra persons were in the employment of the father of the appellant and paid by the father and they were neither employed nor paid by the appellant. The case, therefore, does not fall within Section 123(7) at all and if that be so, it cannot come within Section 124(4).It obviously was a case where a father assisted the son in the matter of the election. These persons were the employees of the father and paid by him for working in the estate. At the request of the father they assisted the son in connection with the election which strictly speaking they were not obliged to do. Was the position in law at all different from the position that the father had given those employees a holiday on full pay and they voluntarily rendered assistance to the appellant in connection with his election? We think not. It is clear to us that qua the appellant these persons were neither employed nor paid by him. So far as the appellant was concerned they were mere volunteers and the learned Advocate for the respondents admits the employment of volunteers does not bring the candidate within the mischief of the definition of corrupt practice as given in Section 123(7).The learned Advocate, however, contended that such a construction would be against the spirit of the election laws in that candidates who have rich friends or relations would have an unfair advantage over a poor rival. The spirit of the law may well be an elusive and unsafe guide and the supposed spirit can certainly not be given effect to in opposition to the plain language of the sections of the Act and the rules made thereunder. If all that can be said of these statutory provisions is that construed according to the ordinary, grammatical and natural meaning of their language they work injustice by placing the poorer candidates at a disadvantage the appeal must be to Parliament and not to this Court.4. On a consideration of the relevant provisions of the Act and the rules and the arguments advanced before us we are of opinion that the appellant cannot in the circumstances of this case be held to be guilty of any corrupt practice under Section 123(7) as alleged against him. It follows from this that not having incurred any expenditure over and above what was shown by him in his return of election expenses he cannot be said to have concealed such expenditure and, therefore, he cannot be held to have been guilty of any minor corrupt practice under Section 124(4) of the Act.5. In the view we have taken, namely, that these extra men were not employed or paid by the appellant, it is unnecessary, for the purpose of this appeal, to discuss the question whether, if ones own servants are also utilized or employed in the conduct of the election their salary for the period they are so utilised or employed should be regarded as election expenses and shown in the return. On that we prefer not to express any opinion on this occasion.
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1[ds]The tribunal took the view - we think quite erroneously - that although the estate belonged to the father of the appellant, nevertheless, as the appellant was the heir apparent and actually looked after the estate on behalf of the old and infirm proprietor, these servants of the estate were "virtually" his "own" servants and could properly be regarded as having been employed for payment by thecan be no doubt that in the eye of the law these extra persons were in the employment of the father of the appellant and paid by the father and they were neither employed nor paid by the appellant. The case, therefore, does not fall within Section 123(7) at all and if that be so, it cannot come within Section 124(4).It obviously was a case where a father assisted the son in the matter of the election. These persons were the employees of the father and paid by him for working in the estate. At the request of the father they assisted the son in connection with the election which strictly speaking they were not obliged to do. Was the position in law at all different from the position that the father had given those employees a holiday on full pay and they voluntarily rendered assistance to the appellant in connection with his election? We think not. It is clear to us that qua the appellant these persons were neither employed nor paid by him. So far as the appellant was concerned they were mere volunteers and the learned Advocate for the respondents admits the employment of volunteers does not bring the candidate within the mischief of the definition of corrupt practice as given in Section 123(7).On a consideration of the relevant provisions of the Act and the rules and the arguments advanced before us we are of opinion that the appellant cannot in the circumstances of this case be held to be guilty of any corrupt practice under Section 123(7) as alleged against him. It follows from this that not having incurred any expenditure over and above what was shown by him in his return of election expenses he cannot be said to have concealed such expenditure and, therefore, he cannot be held to have been guilty of any minor corrupt practice under Section 124(4) of the Act.
| 1 | 2,155 | 431 |
### 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:
electors and 1 Polling Agent and 2 relief agents for each polling booth and 1 messenger at each polling booth. The contravention of the provisions of Sections 77 read with Rr. 117 and 118 and Schedules V and VI is made a corrupt practice by Section 123(7). Section 123(7) clearly shows that in order to amount to a corrupt practice the excess expenditure must be incurred or authorised by a candidate or his agent and the employment of extra persons must likewise be by a candidate or his agent.3. The charge against the appellant was interalia, that the Manager, Assistant Manager, 20 Ziladars of Amethi estate and their peons on orderlies had worked for the appellant in connection with the election. The tribunal took the view - we think quite erroneously - that although the estate belonged to the father of the appellant, nevertheless, as the appellant was the heir apparent and actually looked after the estate on behalf of the old and infirm proprietor, these servants of the estate were "virtually" his "own" servants and could properly be regarded as having been employed for payment by the appellant.The learned Advocate appearing for the respondent frankly and properly conceded that he could not support this part of the finding of the tribunal. He, however, contended, relying on the language used in Section 77, that if the number of persons who worked for payment in connection with the election exceeded the maximum number specified in Scheduled VI, the case fell within the mischief of the relevant sections and the rules, no matter who employed them or who made payments to them. It is true that Section 77 uses the words "who may be employed for payment" without indicating by whom employed or paid but it must be borne in mind that the gist of a corrupt practice as defined in Section 123(7) is that the employment of extra persons and the incurring or authorising of excess expenditure must be by the candidate or his agent. The provisions of Rr. 117 and 118 are to be read in the light of this definition of a corrupt practice.Indeed, these rules follows the language of Section 123(7) in that they prohibit the employment of persons other than or in addition or those specified in Scheduled VI and the incurring or authorising of expenditure in excess of the amount specified in Scheduled V and in both cases by a candidate or his agent. Section 77 must, therefore, be read in a manner consonant with Section 123(7) and Rr. 117 and 118. In this view of the matter the observation made by Phillimore, J. in ---Joseph Forster Wilson v. Sir Christopher Furness, 6 OMally and Hardcastles Report of Election Cases, p.1 at p. 6 (A). relied on by the appellant and referred to in the judgment of the tribunal are quite apposite.There can be no doubt that in the eye of the law these extra persons were in the employment of the father of the appellant and paid by the father and they were neither employed nor paid by the appellant. The case, therefore, does not fall within Section 123(7) at all and if that be so, it cannot come within Section 124(4).It obviously was a case where a father assisted the son in the matter of the election. These persons were the employees of the father and paid by him for working in the estate. At the request of the father they assisted the son in connection with the election which strictly speaking they were not obliged to do. Was the position in law at all different from the position that the father had given those employees a holiday on full pay and they voluntarily rendered assistance to the appellant in connection with his election? We think not. It is clear to us that qua the appellant these persons were neither employed nor paid by him. So far as the appellant was concerned they were mere volunteers and the learned Advocate for the respondents admits the employment of volunteers does not bring the candidate within the mischief of the definition of corrupt practice as given in Section 123(7).The learned Advocate, however, contended that such a construction would be against the spirit of the election laws in that candidates who have rich friends or relations would have an unfair advantage over a poor rival. The spirit of the law may well be an elusive and unsafe guide and the supposed spirit can certainly not be given effect to in opposition to the plain language of the sections of the Act and the rules made thereunder. If all that can be said of these statutory provisions is that construed according to the ordinary, grammatical and natural meaning of their language they work injustice by placing the poorer candidates at a disadvantage the appeal must be to Parliament and not to this Court.4. On a consideration of the relevant provisions of the Act and the rules and the arguments advanced before us we are of opinion that the appellant cannot in the circumstances of this case be held to be guilty of any corrupt practice under Section 123(7) as alleged against him. It follows from this that not having incurred any expenditure over and above what was shown by him in his return of election expenses he cannot be said to have concealed such expenditure and, therefore, he cannot be held to have been guilty of any minor corrupt practice under Section 124(4) of the Act.5. In the view we have taken, namely, that these extra men were not employed or paid by the appellant, it is unnecessary, for the purpose of this appeal, to discuss the question whether, if ones own servants are also utilized or employed in the conduct of the election their salary for the period they are so utilised or employed should be regarded as election expenses and shown in the return. On that we prefer not to express any opinion on this occasion.
### Response:
1
### Explanation:
The tribunal took the view - we think quite erroneously - that although the estate belonged to the father of the appellant, nevertheless, as the appellant was the heir apparent and actually looked after the estate on behalf of the old and infirm proprietor, these servants of the estate were "virtually" his "own" servants and could properly be regarded as having been employed for payment by thecan be no doubt that in the eye of the law these extra persons were in the employment of the father of the appellant and paid by the father and they were neither employed nor paid by the appellant. The case, therefore, does not fall within Section 123(7) at all and if that be so, it cannot come within Section 124(4).It obviously was a case where a father assisted the son in the matter of the election. These persons were the employees of the father and paid by him for working in the estate. At the request of the father they assisted the son in connection with the election which strictly speaking they were not obliged to do. Was the position in law at all different from the position that the father had given those employees a holiday on full pay and they voluntarily rendered assistance to the appellant in connection with his election? We think not. It is clear to us that qua the appellant these persons were neither employed nor paid by him. So far as the appellant was concerned they were mere volunteers and the learned Advocate for the respondents admits the employment of volunteers does not bring the candidate within the mischief of the definition of corrupt practice as given in Section 123(7).On a consideration of the relevant provisions of the Act and the rules and the arguments advanced before us we are of opinion that the appellant cannot in the circumstances of this case be held to be guilty of any corrupt practice under Section 123(7) as alleged against him. It follows from this that not having incurred any expenditure over and above what was shown by him in his return of election expenses he cannot be said to have concealed such expenditure and, therefore, he cannot be held to have been guilty of any minor corrupt practice under Section 124(4) of the Act.
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Rangnath Vs. Daulatrao And Ors
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Tenancy Act was not applicable to the land. The appellant than tried to urge that respondent no. 1 could not be and was not a tenant of the land. But this contention is also not open to the appellant. No where it has been asserted by the appellant not even in the statement of the case and the additional grounds filed in this Court except in the argument put forward by his learned counsel that the Inamdar of the kind the appellant Was, had no right to induct any tenant on the Inam land. The fact remains that respondent no. 1 was in cultivating possession of the land in question paying rent to the appellant since long before the vesting of the Inam. It could not but be in his capacity as a tenant of the appellant. It is no t open to the appellant to assert that the order made by the Revenue Tribunal or as a matter of that in his earlier Special Civil Application by the Bombay High Court was in a proceeding in which there was inherent lack of jurisdiction in the first a uthority and consequently the order was also a nullity. There is no substance in the 4th submission of Mr. Lokur. Section 44(1) of the Tenancy Act reads as follows:44(1) "Notwithstanding anything contained in section 6 or 19 but subject to the provisions of sub-sections (2) to (7), landholder (not being a landholder within the meaning of Chapter IV-C) may) after giving notice to the tenant and making an application for possession as provided in subsection (2), terminate the tenancy of any land, if the landholder bonafide requires the land for cultivating it personally. "5. Section 32 prescribes the procedure of taking possession of the land and sub-section (2) says "Save as otherwise provided in subsection (3A), no landholder shall obtain possession of any land or dwelling house held by a tenant except under an order of the Tehsildar, for which he shall apply in the prescribed form within a period of two years from the date of the commencement of the Hyderabad Tenancy and Agricultural Lands (Amendment) Act, 1957, or the date on which the right to such posses sion accrued to him whichever is later." Reading the wordings of sections 44(1) and 32(2) of the Tenancy Act it was not possible to accept the contention put forward on behalf of the appellant that by mere service of notice and the filing of application for possession the tenancy had some to an end. Until and unless possession was directed to be delivered to the landholder by the competent authority, the tenant continued in possession and continued to be so as a tenant. A full Bench of the Bombay High Court in Dattatraya Sadashiv Dhond v. Ganpati Raghu Gaoli(67 Bombay Law Reporter, 521 .) expressed the view at page 529 "The manner in which a tenancy is to be terminated is, however, laid down in section 44. Under this section the tenancy terminates when after giving the requisite notice the landholder makes an application for possession to the Tehsildar. Thereafter the tenants possession is not unlawful, but it is not held by him as a tenant. He has an estate in possession, which he will lose if the Tehsildar makes an order in favour of the landholder. If, however, the Tehsildar rejects the application of the landholder, the termination of tenancy by the-landholder will become ineffective. The tenancy will revive and the tenant will continue in possession as if his tenancy had not been terminated." Although the view so expressed by the Bombay High Court may not be quite, accurate and the better view to take may be to say that the process of termination of tenancy started by the service of notice and the filing of the application for possession by the landholder is not complete until an order for possession is made by the competent authority and, therefore, there is no termination of tenancy until an order for possession follows in the process, the matter become beyond the pale of controversy in view of rule 28(5) of the Hyderabad Tenancy and Agricultural Lands Rules made in accordance with sub-section (10) of section 44 o f the Act. Sub-section (10) empowers the State Government to provide by rules the time when the termination of tenancy will take effect and rule 28(5) says that on the granting of the application for possession the tenancy shall stand terminated from the commencement of the year following the year in which the application is granted. It is, therefore, clear that the tenancy did not come to an end by the mere service of notice and the filing of the application by the appellant against respondent no. 1 under the Tenancy Act. He was a tenant when the Inam of the appellant vested in the State on the 1st of July, 1960. Indisputably, he was in possession of the land on that date. Consequently he acquired the rights of a n occupant under section 6(1) of the Abolition of Inams Act. There was no error committed by the High Court in deciding this question against the appellant. The High Court was also right in holding that the issue as to the acquiring by respondent no. 1 of the right of an occupant was barred on the principles of res judicata in view of the previous decision in the earlier Special Civil Application. Neither the Revenue Tribunal nor the High Court in the earlier proceeding went into the merits of the appellants claim for resumption of the land. It defeated him on the ground that since respondent no. 1 had acquired the right of an occupant on the abolition and the vesting of the Inam the application under section 32(2) of the Tenancy A ct had got to fail. The issue directly and substantially fell for determination in the earlier case. It was decided against the appellant and he cannot re-agitate the very same question in this proceeding.
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0[ds]It was not necessary for the State Government to give a personal hearing to the appellant or his authorised representative before disposal of his appeal. As has been repeatedly pointed out by this Court the State Government ought to have disposed of the statutory appeal of the appellant filed under section 2A(2) of the Abolition of Inams Act by a speaking order. It may not be possible in all cases to say that a non-speaking order is bad or invalid on that account alone but when an order is liable to be challenged under Articles 226 or 227 of the Constitution of India, Courts do insist that an appeal of the kind filed by the appellant should be and ought to have been disposed of by a speaking order giving some reasons in its support. But on the facts and in the circumstances of this case the High Court did not feet persuaded, and in our opinion rightly, to set aside the order of the State Government and remit back the appellants appeal to them merely on that account. No determination or adjudication of facts was involved The decision of the case rested on the points of law. The High Court did examine the question as to whether respondent no. 1 could not be a tenant of the appellant because of the reason that the Inam had been held to be a Watan Inam and consequently according to the appellant it was a service Inam. In the present proceeding the High Court pointed out that respondent no. 1 was admittedly the appellants tenant. Mere service of notice under section 44 of the Tenancy Act had not terminated the tenancy. The proceeding for resumption of the land under the Tenancy Act finally terminated against the appellant on the ground that respondent no. 1 could no longer be evicted as he had acquired the right of an occupant under the Abolition of 1 On the finding recorded by the Deputy Collector in his order dated 30-11-1962 that the appellant held the Inam as a Watan for the purpose of this case we shall assume in his favour that it was a service Inam and hence the pro visions of the Tenancy Act were not applicable. But such a stand is wholly contrary to the appellants case in the previous proceedings for resumption of land. Every where the appellant asserted that respondent no. 1 was his tenant, so much so that in his Special Civil Application No. 1881 of 1962 a copy of which was given to us by Mr S. T. Desai, learned counsel for respondent no. 1, he had stated in paragraph 7 "That the learned Member of the Tribunal has failed to apply his mind to the provisions of Sec. 102(c) which was in force prior to the substitution of new Section 102-A(c) of the Hyderabad Tenancy and Agricultural Lands Act. It does not apply to the case in question as the suit land is an Inam land not a service Inam, so the Tenancy Act is applicable to the present case." It is not open to the appellant to change his stand and then assert that the previous proceedings started by him for resumption of the land was ultra vires and without jurisdiction as the Tenancy Act was not applicable to the land. The appellant than tried to urge that respondent no. 1 could not be and was not a tenant of the land. But this contention is also not open to the appellant. No where it has been asserted by the appellant not even in the statement of the case and the additional grounds filed in this Court except in the argument put forward by his learned counsel that the Inamdar of the kind the appellant Was, had no right to induct any tenant on the Inam land. The fact remains that respondent no. 1 was in cultivating possession of the land in question paying rent to the appellant since long before the vesting of the Inam. It could not but be in his capacity as a tenant of the appellant. It is no t open to the appellant to assert that the order made by the Revenue Tribunal or as a matter of that in his earlier Special Civil Application by the Bombay High Court was in a proceeding in which there was inherent lack of jurisdiction in the first a uthority and consequently the order was also a nullity. There is no substance in the 4th submission of Mr. Lokur. Section 44(1) of the Tenancy Act reads as follows:44(1) "Notwithstanding anything contained in section 6 or 19 but subject to the provisions of sub-sections (2) to (7), landholder (not being a landholder within the meaning of Chapter IV-C) may) after giving notice to the tenant and making an application for possession as provided in subsection (2), terminate the tenancy of any land, if the landholder bonafide requires the land for cultivating itthe view so expressed by the Bombay High Court may not be quite, accurate and the better view to take may be to say that the process of termination of tenancy started by the service of notice and the filing of the application for possession by the landholder is not complete until an order for possession is made by the competent authority and, therefore, there is no termination of tenancy until an order for possession follows in the process, the matter become beyond the pale of controversy in view of rule 28(5) of the Hyderabad Tenancy and Agricultural Lands Rules made in accordance with sub-section (10) of section 44 o f the Act. Sub-section (10) empowers the State Government to provide by rules the time when the termination of tenancy will take effect and rule 28(5) says that on the granting of the application for possession the tenancy shall stand terminated from the commencement of the year following the year in which the application is granted. It is, therefore, clear that the tenancy did not come to an end by the mere service of notice and the filing of the application by the appellant against respondent no. 1 under the Tenancy Act. He was a tenant when the Inam of the appellant vested in the State on the 1st of July, 1960. Indisputably, he was in possession of the land on that date. Consequently he acquired the rights of a n occupant under section 6(1) of the Abolition of Inams Act. There was no error committed by the High Court in deciding this question against the appellant. The High Court was also right in holding that the issue as to the acquiring by respondent no. 1 of the right of an occupant was barred on the principles of res judicata in view of the previous decision in the earlier Special Civil Application. Neither the Revenue Tribunal nor the High Court in the earlier proceeding went into the merits of the appellants claim for resumption of the land. It defeated him on the ground that since respondent no. 1 had acquired the right of an occupant on the abolition and the vesting of the Inam the application under section 32(2) of the Tenancy A ct had got to fail. The issue directly and substantially fell for determination in the earlier case. It was decided against the appellant and he cannot re-agitate the very same question in this proceeding
| 0 | 3,095 | 1,342 |
### 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:
Tenancy Act was not applicable to the land. The appellant than tried to urge that respondent no. 1 could not be and was not a tenant of the land. But this contention is also not open to the appellant. No where it has been asserted by the appellant not even in the statement of the case and the additional grounds filed in this Court except in the argument put forward by his learned counsel that the Inamdar of the kind the appellant Was, had no right to induct any tenant on the Inam land. The fact remains that respondent no. 1 was in cultivating possession of the land in question paying rent to the appellant since long before the vesting of the Inam. It could not but be in his capacity as a tenant of the appellant. It is no t open to the appellant to assert that the order made by the Revenue Tribunal or as a matter of that in his earlier Special Civil Application by the Bombay High Court was in a proceeding in which there was inherent lack of jurisdiction in the first a uthority and consequently the order was also a nullity. There is no substance in the 4th submission of Mr. Lokur. Section 44(1) of the Tenancy Act reads as follows:44(1) "Notwithstanding anything contained in section 6 or 19 but subject to the provisions of sub-sections (2) to (7), landholder (not being a landholder within the meaning of Chapter IV-C) may) after giving notice to the tenant and making an application for possession as provided in subsection (2), terminate the tenancy of any land, if the landholder bonafide requires the land for cultivating it personally. "5. Section 32 prescribes the procedure of taking possession of the land and sub-section (2) says "Save as otherwise provided in subsection (3A), no landholder shall obtain possession of any land or dwelling house held by a tenant except under an order of the Tehsildar, for which he shall apply in the prescribed form within a period of two years from the date of the commencement of the Hyderabad Tenancy and Agricultural Lands (Amendment) Act, 1957, or the date on which the right to such posses sion accrued to him whichever is later." Reading the wordings of sections 44(1) and 32(2) of the Tenancy Act it was not possible to accept the contention put forward on behalf of the appellant that by mere service of notice and the filing of application for possession the tenancy had some to an end. Until and unless possession was directed to be delivered to the landholder by the competent authority, the tenant continued in possession and continued to be so as a tenant. A full Bench of the Bombay High Court in Dattatraya Sadashiv Dhond v. Ganpati Raghu Gaoli(67 Bombay Law Reporter, 521 .) expressed the view at page 529 "The manner in which a tenancy is to be terminated is, however, laid down in section 44. Under this section the tenancy terminates when after giving the requisite notice the landholder makes an application for possession to the Tehsildar. Thereafter the tenants possession is not unlawful, but it is not held by him as a tenant. He has an estate in possession, which he will lose if the Tehsildar makes an order in favour of the landholder. If, however, the Tehsildar rejects the application of the landholder, the termination of tenancy by the-landholder will become ineffective. The tenancy will revive and the tenant will continue in possession as if his tenancy had not been terminated." Although the view so expressed by the Bombay High Court may not be quite, accurate and the better view to take may be to say that the process of termination of tenancy started by the service of notice and the filing of the application for possession by the landholder is not complete until an order for possession is made by the competent authority and, therefore, there is no termination of tenancy until an order for possession follows in the process, the matter become beyond the pale of controversy in view of rule 28(5) of the Hyderabad Tenancy and Agricultural Lands Rules made in accordance with sub-section (10) of section 44 o f the Act. Sub-section (10) empowers the State Government to provide by rules the time when the termination of tenancy will take effect and rule 28(5) says that on the granting of the application for possession the tenancy shall stand terminated from the commencement of the year following the year in which the application is granted. It is, therefore, clear that the tenancy did not come to an end by the mere service of notice and the filing of the application by the appellant against respondent no. 1 under the Tenancy Act. He was a tenant when the Inam of the appellant vested in the State on the 1st of July, 1960. Indisputably, he was in possession of the land on that date. Consequently he acquired the rights of a n occupant under section 6(1) of the Abolition of Inams Act. There was no error committed by the High Court in deciding this question against the appellant. The High Court was also right in holding that the issue as to the acquiring by respondent no. 1 of the right of an occupant was barred on the principles of res judicata in view of the previous decision in the earlier Special Civil Application. Neither the Revenue Tribunal nor the High Court in the earlier proceeding went into the merits of the appellants claim for resumption of the land. It defeated him on the ground that since respondent no. 1 had acquired the right of an occupant on the abolition and the vesting of the Inam the application under section 32(2) of the Tenancy A ct had got to fail. The issue directly and substantially fell for determination in the earlier case. It was decided against the appellant and he cannot re-agitate the very same question in this proceeding.
### Response:
0
### Explanation:
Watan Inam and consequently according to the appellant it was a service Inam. In the present proceeding the High Court pointed out that respondent no. 1 was admittedly the appellants tenant. Mere service of notice under section 44 of the Tenancy Act had not terminated the tenancy. The proceeding for resumption of the land under the Tenancy Act finally terminated against the appellant on the ground that respondent no. 1 could no longer be evicted as he had acquired the right of an occupant under the Abolition of 1 On the finding recorded by the Deputy Collector in his order dated 30-11-1962 that the appellant held the Inam as a Watan for the purpose of this case we shall assume in his favour that it was a service Inam and hence the pro visions of the Tenancy Act were not applicable. But such a stand is wholly contrary to the appellants case in the previous proceedings for resumption of land. Every where the appellant asserted that respondent no. 1 was his tenant, so much so that in his Special Civil Application No. 1881 of 1962 a copy of which was given to us by Mr S. T. Desai, learned counsel for respondent no. 1, he had stated in paragraph 7 "That the learned Member of the Tribunal has failed to apply his mind to the provisions of Sec. 102(c) which was in force prior to the substitution of new Section 102-A(c) of the Hyderabad Tenancy and Agricultural Lands Act. It does not apply to the case in question as the suit land is an Inam land not a service Inam, so the Tenancy Act is applicable to the present case." It is not open to the appellant to change his stand and then assert that the previous proceedings started by him for resumption of the land was ultra vires and without jurisdiction as the Tenancy Act was not applicable to the land. The appellant than tried to urge that respondent no. 1 could not be and was not a tenant of the land. But this contention is also not open to the appellant. No where it has been asserted by the appellant not even in the statement of the case and the additional grounds filed in this Court except in the argument put forward by his learned counsel that the Inamdar of the kind the appellant Was, had no right to induct any tenant on the Inam land. The fact remains that respondent no. 1 was in cultivating possession of the land in question paying rent to the appellant since long before the vesting of the Inam. It could not but be in his capacity as a tenant of the appellant. It is no t open to the appellant to assert that the order made by the Revenue Tribunal or as a matter of that in his earlier Special Civil Application by the Bombay High Court was in a proceeding in which there was inherent lack of jurisdiction in the first a uthority and consequently the order was also a nullity. There is no substance in the 4th submission of Mr. Lokur. Section 44(1) of the Tenancy Act reads as follows:44(1) "Notwithstanding anything contained in section 6 or 19 but subject to the provisions of sub-sections (2) to (7), landholder (not being a landholder within the meaning of Chapter IV-C) may) after giving notice to the tenant and making an application for possession as provided in subsection (2), terminate the tenancy of any land, if the landholder bonafide requires the land for cultivating itthe view so expressed by the Bombay High Court may not be quite, accurate and the better view to take may be to say that the process of termination of tenancy started by the service of notice and the filing of the application for possession by the landholder is not complete until an order for possession is made by the competent authority and, therefore, there is no termination of tenancy until an order for possession follows in the process, the matter become beyond the pale of controversy in view of rule 28(5) of the Hyderabad Tenancy and Agricultural Lands Rules made in accordance with sub-section (10) of section 44 o f the Act. Sub-section (10) empowers the State Government to provide by rules the time when the termination of tenancy will take effect and rule 28(5) says that on the granting of the application for possession the tenancy shall stand terminated from the commencement of the year following the year in which the application is granted. It is, therefore, clear that the tenancy did not come to an end by the mere service of notice and the filing of the application by the appellant against respondent no. 1 under the Tenancy Act. He was a tenant when the Inam of the appellant vested in the State on the 1st of July, 1960. Indisputably, he was in possession of the land on that date. Consequently he acquired the rights of a n occupant under section 6(1) of the Abolition of Inams Act. There was no error committed by the High Court in deciding this question against the appellant. The High Court was also right in holding that the issue as to the acquiring by respondent no. 1 of the right of an occupant was barred on the principles of res judicata in view of the previous decision in the earlier Special Civil Application. Neither the Revenue Tribunal nor the High Court in the earlier proceeding went into the merits of the appellants claim for resumption of the land. It defeated him on the ground that since respondent no. 1 had acquired the right of an occupant on the abolition and the vesting of the Inam the application under section 32(2) of the Tenancy A ct had got to fail. The issue directly and substantially fell for determination in the earlier case. It was decided against the appellant and he cannot re-agitate the very same question in this proceeding
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Pupinder Pal Singh Vs. State of Punjab
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the father of the deceased. In such circumstances, it was quite unlikely that the Appellant a young boy of 17 years, would unnecessarily kill the deceased by firing at him from a very close range particularly when he had no occasion to be inimical to the deceased. Mr. Lalit has also contended that depositions of relations of complainant and deceased and persons having strained relations with the accused need not be discarded as a matter of course but the expediency requires that the Court should be careful enough in accepting such evidences. He has submitted that it is quite apparent that there was bad relations between the complainant and the accused and one of the witnesses for the prosecution had occasions to be inimical. It has been found that a false implication was sought to be made against the father of the Appellant Iqbal Singh but the learned Sessions Judge did not accept the prosecution case so far as Iqbal Singh is concerned. When the prosecution witnesses had shown over-jealousness to falsely implicate the father of the Appellant because of enmity, the depositions of the alleged eye witnesses should not have been accepted by the courts below on the face value. Mr. Lalit has submitted that the High Court has failed to appreciate that when the witnesses for the prosecution had deposed falsely to implicate both the father and the son in order to feed fat on the grudge, it was only expedient that no reliance should be placed on their evidences even against the Appellant. He has, therefore, submitted that the conviction of the Appellant is wholly unjustified and the same should be set aside and the Appellant should be acquitted. 9. Such contention of Mr. Lalit was strongly refuted by Mr. Bindra, Senior Counsel appearing for the Respondent. Mr. Bindra has submitted that admittedly the deceased had died because of the injuries caused by the shot fired from the gun since held by the Appellant. The place and time of occurrence are also admitted. It is, therefore, necessary to analyse as to whether the deceased had deed to accidental fire as has been contended by the Appellant or the Appellant had deliberately fired on the deceased. The Learned Counsel has submitted that it has been held by both the courts below that the presence of the eye witnesses at the place of occurrence was quite natural. He has submitted that there is no inconsistency in their depositions. So far as the Appellant is concerned, their depositions are also corroborated by the medical report and the evidences given by the doctor who is a disinterested witness. Simply because the relations of the deceased and the neighbour who had strained -relation with the accused No. 1, had deposed on behalf of the prosecution, there was no reason to discard their deposition more so when such depositions stand corroborated by medical evidence, both the courts below have given good reasons for accepting the straightforward deposition given by eye-witnesses. Mr. Bindra has also contended that if the automatic rifle of the accused No. 1 was in a proper working condition, the fired cartridge was likely to be ejected from the rifle but it could not be established on behalf of the accused that the said rifle when fired was in such a proper condition at the time of occurrence. Moreover, simply because the cartridge was not found, it cannot be held that the eye-witnesses had been deposing falsely against the accused No. 1. He has also submitted that it has not been held by the learned Sessions Judge that the witnesses had been deposing falsely and they were not trustworthy but the accused No. 1 was acquitted by giving him benefit of doubt because the case against him could not be proved beyond all reasonable doubts. In the aforesaid circumstances, the contention of the Learned Counsel for the Appellant that the deposition of the eye witnesses also against the Appellant were required to be discarded, cannot be accepted. Mr. Bindra has also contended that the High Court has given elaborate reasons in concurring with the findings of the learned Sessions Judge that the Appellant was guilty for murdering the deceased and there is no ground to discard them. He has contended that the Appellant made a cunning attempt to give a story of accidental firing by making an application before the police authorities. But the falsity of the case of the Appellant was clearly established by the evidences adduced in the case and both the courts below, therefore, did not accept the same. The Learned Counsel has, therefore, contended that in the aforesaid facts, there is no occasion to interfere with the concurrent findings of the courts below. The appeal, therefore, should be dismissed. 10. After considering the facts and circumstances of the case and the contentions made by the Learned Counsel for the parties, it appears to us that the case of accidental firing as sought to be contended cannot be accepted. It has been rightly held by the courts below that the presence of the eye-witnesses at the place of occurrence was natural and their depositions were not liable to be discarded. It also appears to us that the depositions of the eye-witnesses stand amply corroborated from the evidence of the doctor and also the post mortem report. The delay in lodging the first information report has been explained by P.W. 2, the father of the deceased and such explanation has been rightly accepted by the High Court and we do not find and cogent reason to take a contrary view. In our view, the grounds indicated by the High Court in discarding the case of accidental fire on account of the alleged tussle between the deceased and the Appellant appear to be quite reasonable. There is also force in the submission of Mr. Bindra that simply because prosecution case against accused No. 1 was not accepted to be fully proved, the case against the Appellant should not be dismissed.
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0[ds]10. After considering the facts and circumstances of the case and the contentions made by the Learned Counsel for the parties, it appears to us that the case of accidental firing as sought to be contended cannot be accepted. It has been rightly held by the courts below that the presence of the eye-witnesses at the place of occurrence was natural and their depositions were not liable to be discarded. It also appears to us that the depositions of the eye-witnesses stand amply corroborated from the evidence of the doctor and also the post mortem report. The delay in lodging the first information report has been explained by P.W. 2, the father of the deceased and such explanation has been rightly accepted by the High Court and we do not find and cogent reason to take a contrary view. In our view, the grounds indicated by the High Court in discarding the case of accidental fire on account of the alleged tussle between the deceased and the Appellant appear to be quite reasonable. There is also force in the submission of Mr. Bindra that simply because prosecution case against accused No. 1 was not accepted to be fully proved, the case against the Appellant should not be dismissed.
| 0 | 5,256 | 226 |
### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
the father of the deceased. In such circumstances, it was quite unlikely that the Appellant a young boy of 17 years, would unnecessarily kill the deceased by firing at him from a very close range particularly when he had no occasion to be inimical to the deceased. Mr. Lalit has also contended that depositions of relations of complainant and deceased and persons having strained relations with the accused need not be discarded as a matter of course but the expediency requires that the Court should be careful enough in accepting such evidences. He has submitted that it is quite apparent that there was bad relations between the complainant and the accused and one of the witnesses for the prosecution had occasions to be inimical. It has been found that a false implication was sought to be made against the father of the Appellant Iqbal Singh but the learned Sessions Judge did not accept the prosecution case so far as Iqbal Singh is concerned. When the prosecution witnesses had shown over-jealousness to falsely implicate the father of the Appellant because of enmity, the depositions of the alleged eye witnesses should not have been accepted by the courts below on the face value. Mr. Lalit has submitted that the High Court has failed to appreciate that when the witnesses for the prosecution had deposed falsely to implicate both the father and the son in order to feed fat on the grudge, it was only expedient that no reliance should be placed on their evidences even against the Appellant. He has, therefore, submitted that the conviction of the Appellant is wholly unjustified and the same should be set aside and the Appellant should be acquitted. 9. Such contention of Mr. Lalit was strongly refuted by Mr. Bindra, Senior Counsel appearing for the Respondent. Mr. Bindra has submitted that admittedly the deceased had died because of the injuries caused by the shot fired from the gun since held by the Appellant. The place and time of occurrence are also admitted. It is, therefore, necessary to analyse as to whether the deceased had deed to accidental fire as has been contended by the Appellant or the Appellant had deliberately fired on the deceased. The Learned Counsel has submitted that it has been held by both the courts below that the presence of the eye witnesses at the place of occurrence was quite natural. He has submitted that there is no inconsistency in their depositions. So far as the Appellant is concerned, their depositions are also corroborated by the medical report and the evidences given by the doctor who is a disinterested witness. Simply because the relations of the deceased and the neighbour who had strained -relation with the accused No. 1, had deposed on behalf of the prosecution, there was no reason to discard their deposition more so when such depositions stand corroborated by medical evidence, both the courts below have given good reasons for accepting the straightforward deposition given by eye-witnesses. Mr. Bindra has also contended that if the automatic rifle of the accused No. 1 was in a proper working condition, the fired cartridge was likely to be ejected from the rifle but it could not be established on behalf of the accused that the said rifle when fired was in such a proper condition at the time of occurrence. Moreover, simply because the cartridge was not found, it cannot be held that the eye-witnesses had been deposing falsely against the accused No. 1. He has also submitted that it has not been held by the learned Sessions Judge that the witnesses had been deposing falsely and they were not trustworthy but the accused No. 1 was acquitted by giving him benefit of doubt because the case against him could not be proved beyond all reasonable doubts. In the aforesaid circumstances, the contention of the Learned Counsel for the Appellant that the deposition of the eye witnesses also against the Appellant were required to be discarded, cannot be accepted. Mr. Bindra has also contended that the High Court has given elaborate reasons in concurring with the findings of the learned Sessions Judge that the Appellant was guilty for murdering the deceased and there is no ground to discard them. He has contended that the Appellant made a cunning attempt to give a story of accidental firing by making an application before the police authorities. But the falsity of the case of the Appellant was clearly established by the evidences adduced in the case and both the courts below, therefore, did not accept the same. The Learned Counsel has, therefore, contended that in the aforesaid facts, there is no occasion to interfere with the concurrent findings of the courts below. The appeal, therefore, should be dismissed. 10. After considering the facts and circumstances of the case and the contentions made by the Learned Counsel for the parties, it appears to us that the case of accidental firing as sought to be contended cannot be accepted. It has been rightly held by the courts below that the presence of the eye-witnesses at the place of occurrence was natural and their depositions were not liable to be discarded. It also appears to us that the depositions of the eye-witnesses stand amply corroborated from the evidence of the doctor and also the post mortem report. The delay in lodging the first information report has been explained by P.W. 2, the father of the deceased and such explanation has been rightly accepted by the High Court and we do not find and cogent reason to take a contrary view. In our view, the grounds indicated by the High Court in discarding the case of accidental fire on account of the alleged tussle between the deceased and the Appellant appear to be quite reasonable. There is also force in the submission of Mr. Bindra that simply because prosecution case against accused No. 1 was not accepted to be fully proved, the case against the Appellant should not be dismissed.
### Response:
0
### Explanation:
10. After considering the facts and circumstances of the case and the contentions made by the Learned Counsel for the parties, it appears to us that the case of accidental firing as sought to be contended cannot be accepted. It has been rightly held by the courts below that the presence of the eye-witnesses at the place of occurrence was natural and their depositions were not liable to be discarded. It also appears to us that the depositions of the eye-witnesses stand amply corroborated from the evidence of the doctor and also the post mortem report. The delay in lodging the first information report has been explained by P.W. 2, the father of the deceased and such explanation has been rightly accepted by the High Court and we do not find and cogent reason to take a contrary view. In our view, the grounds indicated by the High Court in discarding the case of accidental fire on account of the alleged tussle between the deceased and the Appellant appear to be quite reasonable. There is also force in the submission of Mr. Bindra that simply because prosecution case against accused No. 1 was not accepted to be fully proved, the case against the Appellant should not be dismissed.
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Gunamma (D) By L.R Vs. Shevantibai (D) By L.R. & Others
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issues were decided in favour of the plaintiff but as the original plaintiff had died in the year 1983 the first appellate Court held that the substituted plaintiff, as the adopted son, would have no right to the properties as the said adoption was not valid on the ground that the original plaintiffs power to adopt a son was permanently extinguished on the death of the natural son leaving his widow. In Second Appeal by the substituted plaintiff the High Court took the view that though the adoption was valid, the property had already vested in the legal heir of the sole coparcener i.e. Mallappa-2 and such legal heir (defendant No.1) cannot be divested of the property by the subsequent adoption. Aggrieved, this appeal has been filed. 7. We have heard the learned counsels for the parties. We have considered the provisions of the Sangli Act as extracted in the Appeal Paper Book; the provisions of the Hindu Womens Rights to Property Act, 1937; and also the relevant provisions of the Hindu Adoptions & Maintenance Act, 1956. 8. The matter really lies within a short compass and the issue arising can be identified to be whether the original plaintiff Gunamma had a share in the property inherited by her husband Damodar at the time of the her husbands (Damodar) death in the year 1932. 9. A consideration of the provisions of the Sangli Act would go to show that upon the death of a husband of a Hindu woman, not only she continues to remain a member in the joint family but also becomes a Sahabhagidar in place of her husband and is entitled to claim partition. The aforesaid right, therefore, accrued to the original plaintiff under the Sangli Act, notwithstanding the death of her husband Damodar in the year 1932 i.e. before coming into force of the Sangli Act [Section 1(E)]. If under the Sangli Act, the original plaintiff Gunamma was a Sahabhagidar in place of her husband, it is difficult to appreciate how on the death of her husband Damodar in the year 1932 she would cease to have any right in the property and the entire of the same could go in favour of Malappa-2, son of Damodar through his first wife. 10. If the original plaintiff had a share in the property inherited by her husband Damodar, naturally, if the adoption of the substituted plaintiff is held to be valid, as held by the High Court, the substituted plaintiff would continue to have a right in the property to the extent of the share of his mother i.e. Gunamma, the original plaintiff. In this regard, we have also noticed that it was precisely the above issue which was framed as Issue No.5 in the suit. The said issue was held in favour of the plaintiff by the first appellate Court. No cross-objection to the said findings under Issue No.5 has been taken by the defendant - respondents. 11. An argument has been sought to be raised relying on the decision of this court in the case of Ravinder Kumar Sharma v. State of Assam and others, AIR 1999 SC 3571 to contend that the filing of a cross-objection is an optional course of action and not mandatory. While the same may be correct, under Order XLI rule 22 of the Code of Civil Procedure, 1908 a contest can also be made to a finding adverse to a party though the decree may be in his favour. No contest to the findings of the learned first appellate Court was made by the present respondents in the Second Appeal before the High Court. We, therefore, do not consider it appropriate to go into the said question in the present proceedings under Article 136 of the Constitution of India. Even otherwise, on merits, for the reasons that we have indicated earlier, we find no error in the aforesaid view taken by the first appellate Court. 12. Another argument has been made on behalf of the respondent -defendant No.1 that under Sections 3 and 4 of the Hindu Womens Rights to Property Act, 1937 Gunamma would not be entitled to an absolute right in any part of the property following the death of her husband. The position may be correct so far as the Hindu Womens Rights to Property Act, 1937 is concerned, particularly, in view of the provisions contained in Section 3(3) of the said Act. However, in the present case, it is the provisions of the Sangli Act which would govern the parties. The concept of limited estate contained in Section 3(3) of the Hindu Womens Rights to Property Act, 1937 do not find any reflection in the provisions of the Sangli Act which has been extracted above and has been considered by us in the present proceedings. 13. A further argument has been advanced by the learned counsel for the respondents with regard to the provisions contained in Section 12(c) of the Hindu Adoptions and Maintenance Act, 1956. It has been submitted that the adoption of the substituted plaintiff being in the year 1978, the pre-existing rights cannot be divested. 14. We have noticed that it is on the aforesaid basis on which the High Court had proceeded to affirm the decree of dismissal of the suit. Having considered the facts of the case and the provisions of Section 12(c) of the Hindu Adoptions and Maintenance Act, 1956 we are of the view that the said provision would have no application to the present case. As already held by us, the plaintiff Gunamma was entitled to a share to the property of her husband Damodar way back in the year 1932 and, adoption being in the year 1978, on her death, the substituted plaintiff i.e. the adopted son must be understood to be legal heir in respect of the aforesaid property of the original plaintiff Gunamma. The argument raised on the strength of Section 12(c) of the Hindu Adoptions and Maintenance Act, 1956, therefore, has to fail.
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1[ds]9. A consideration of the provisions of the Sangli Act would go to show that upon the death of a husband of a Hindu woman, not only she continues to remain a member in the joint family but also becomes a Sahabhagidar in place of her husband and is entitled to claim partition. The aforesaid right, therefore, accrued to the original plaintiff under the Sangli Act, notwithstanding the death of her husband Damodar in the year 1932 i.e. before coming into force of the Sangli Act [Section 1(E)]. If under the Sangli Act, the original plaintiff Gunamma was a Sahabhagidar in place of her husband, it is difficult to appreciate how on the death of her husband Damodar in the year 1932 she would cease to have any right in the property and the entire of the same could go in favour ofson of Damodar through his first wife.If the original plaintiff had a share in the property inherited by her husband Damodar, naturally, if the adoption of the substituted plaintiff is held to be valid, as held by the High Court, the substituted plaintiff would continue to have a right in the property to the extent of the share of his mother i.e. Gunamma, the original plaintiff. In this regard, we have also noticed that it was precisely the above issue which was framed as Issue No.5 in the suit. The said issue was held in favour of the plaintiff by the first appellate Court. Noto the said findings under Issue No.5 has been taken by the defendantthe same may be correct, under Order XLI rule 22 of the Code of Civil Procedure, 1908 a contest can also be made to a finding adverse to a party though the decree may be in his favour. No contest to the findings of the learned first appellate Court was made by the present respondents in the Second Appeal before the High Court. We, therefore, do not consider it appropriate to go into the said question in the present proceedings under Article 136 of the Constitution of India. Even otherwise, on merits, for the reasons that we have indicated earlier, we find no error in the aforesaid view taken by the first appellateposition may be correct so far as the Hindu Womens Rights to Property Act, 1937 is concerned, particularly, in view of the provisions contained in Section 3(3) of the said Act. However, in the present case, it is the provisions of the Sangli Act which would govern the parties. The concept of limited estate contained in Section 3(3) of the Hindu Womens Rights to Property Act, 1937 do not find any reflection in the provisions of the Sangli Act which has been extracted above and has been considered by us in the present proceedings.We have noticed that it is on the aforesaid basis on which the High Court had proceeded to affirm the decree of dismissal of the suit. Having considered the facts of the case and the provisions of Section 12(c) of the Hindu Adoptions and Maintenance Act, 1956 we are of the view that the said provision would have no application to the present case. As already held by us, the plaintiff Gunamma was entitled to a share to the property of her husband Damodar way back in the year 1932 and, adoption being in the year 1978, on her death, the substituted plaintiff i.e. the adopted son must be understood to be legal heir in respect of the aforesaid property of the original plaintiff Gunamma. The argument raised on the strength of Section 12(c) of the Hindu Adoptions and Maintenance Act, 1956, therefore, has to fail.
| 1 | 2,157 | 681 |
### 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:
issues were decided in favour of the plaintiff but as the original plaintiff had died in the year 1983 the first appellate Court held that the substituted plaintiff, as the adopted son, would have no right to the properties as the said adoption was not valid on the ground that the original plaintiffs power to adopt a son was permanently extinguished on the death of the natural son leaving his widow. In Second Appeal by the substituted plaintiff the High Court took the view that though the adoption was valid, the property had already vested in the legal heir of the sole coparcener i.e. Mallappa-2 and such legal heir (defendant No.1) cannot be divested of the property by the subsequent adoption. Aggrieved, this appeal has been filed. 7. We have heard the learned counsels for the parties. We have considered the provisions of the Sangli Act as extracted in the Appeal Paper Book; the provisions of the Hindu Womens Rights to Property Act, 1937; and also the relevant provisions of the Hindu Adoptions & Maintenance Act, 1956. 8. The matter really lies within a short compass and the issue arising can be identified to be whether the original plaintiff Gunamma had a share in the property inherited by her husband Damodar at the time of the her husbands (Damodar) death in the year 1932. 9. A consideration of the provisions of the Sangli Act would go to show that upon the death of a husband of a Hindu woman, not only she continues to remain a member in the joint family but also becomes a Sahabhagidar in place of her husband and is entitled to claim partition. The aforesaid right, therefore, accrued to the original plaintiff under the Sangli Act, notwithstanding the death of her husband Damodar in the year 1932 i.e. before coming into force of the Sangli Act [Section 1(E)]. If under the Sangli Act, the original plaintiff Gunamma was a Sahabhagidar in place of her husband, it is difficult to appreciate how on the death of her husband Damodar in the year 1932 she would cease to have any right in the property and the entire of the same could go in favour of Malappa-2, son of Damodar through his first wife. 10. If the original plaintiff had a share in the property inherited by her husband Damodar, naturally, if the adoption of the substituted plaintiff is held to be valid, as held by the High Court, the substituted plaintiff would continue to have a right in the property to the extent of the share of his mother i.e. Gunamma, the original plaintiff. In this regard, we have also noticed that it was precisely the above issue which was framed as Issue No.5 in the suit. The said issue was held in favour of the plaintiff by the first appellate Court. No cross-objection to the said findings under Issue No.5 has been taken by the defendant - respondents. 11. An argument has been sought to be raised relying on the decision of this court in the case of Ravinder Kumar Sharma v. State of Assam and others, AIR 1999 SC 3571 to contend that the filing of a cross-objection is an optional course of action and not mandatory. While the same may be correct, under Order XLI rule 22 of the Code of Civil Procedure, 1908 a contest can also be made to a finding adverse to a party though the decree may be in his favour. No contest to the findings of the learned first appellate Court was made by the present respondents in the Second Appeal before the High Court. We, therefore, do not consider it appropriate to go into the said question in the present proceedings under Article 136 of the Constitution of India. Even otherwise, on merits, for the reasons that we have indicated earlier, we find no error in the aforesaid view taken by the first appellate Court. 12. Another argument has been made on behalf of the respondent -defendant No.1 that under Sections 3 and 4 of the Hindu Womens Rights to Property Act, 1937 Gunamma would not be entitled to an absolute right in any part of the property following the death of her husband. The position may be correct so far as the Hindu Womens Rights to Property Act, 1937 is concerned, particularly, in view of the provisions contained in Section 3(3) of the said Act. However, in the present case, it is the provisions of the Sangli Act which would govern the parties. The concept of limited estate contained in Section 3(3) of the Hindu Womens Rights to Property Act, 1937 do not find any reflection in the provisions of the Sangli Act which has been extracted above and has been considered by us in the present proceedings. 13. A further argument has been advanced by the learned counsel for the respondents with regard to the provisions contained in Section 12(c) of the Hindu Adoptions and Maintenance Act, 1956. It has been submitted that the adoption of the substituted plaintiff being in the year 1978, the pre-existing rights cannot be divested. 14. We have noticed that it is on the aforesaid basis on which the High Court had proceeded to affirm the decree of dismissal of the suit. Having considered the facts of the case and the provisions of Section 12(c) of the Hindu Adoptions and Maintenance Act, 1956 we are of the view that the said provision would have no application to the present case. As already held by us, the plaintiff Gunamma was entitled to a share to the property of her husband Damodar way back in the year 1932 and, adoption being in the year 1978, on her death, the substituted plaintiff i.e. the adopted son must be understood to be legal heir in respect of the aforesaid property of the original plaintiff Gunamma. The argument raised on the strength of Section 12(c) of the Hindu Adoptions and Maintenance Act, 1956, therefore, has to fail.
### Response:
1
### Explanation:
9. A consideration of the provisions of the Sangli Act would go to show that upon the death of a husband of a Hindu woman, not only she continues to remain a member in the joint family but also becomes a Sahabhagidar in place of her husband and is entitled to claim partition. The aforesaid right, therefore, accrued to the original plaintiff under the Sangli Act, notwithstanding the death of her husband Damodar in the year 1932 i.e. before coming into force of the Sangli Act [Section 1(E)]. If under the Sangli Act, the original plaintiff Gunamma was a Sahabhagidar in place of her husband, it is difficult to appreciate how on the death of her husband Damodar in the year 1932 she would cease to have any right in the property and the entire of the same could go in favour ofson of Damodar through his first wife.If the original plaintiff had a share in the property inherited by her husband Damodar, naturally, if the adoption of the substituted plaintiff is held to be valid, as held by the High Court, the substituted plaintiff would continue to have a right in the property to the extent of the share of his mother i.e. Gunamma, the original plaintiff. In this regard, we have also noticed that it was precisely the above issue which was framed as Issue No.5 in the suit. The said issue was held in favour of the plaintiff by the first appellate Court. Noto the said findings under Issue No.5 has been taken by the defendantthe same may be correct, under Order XLI rule 22 of the Code of Civil Procedure, 1908 a contest can also be made to a finding adverse to a party though the decree may be in his favour. No contest to the findings of the learned first appellate Court was made by the present respondents in the Second Appeal before the High Court. We, therefore, do not consider it appropriate to go into the said question in the present proceedings under Article 136 of the Constitution of India. Even otherwise, on merits, for the reasons that we have indicated earlier, we find no error in the aforesaid view taken by the first appellateposition may be correct so far as the Hindu Womens Rights to Property Act, 1937 is concerned, particularly, in view of the provisions contained in Section 3(3) of the said Act. However, in the present case, it is the provisions of the Sangli Act which would govern the parties. The concept of limited estate contained in Section 3(3) of the Hindu Womens Rights to Property Act, 1937 do not find any reflection in the provisions of the Sangli Act which has been extracted above and has been considered by us in the present proceedings.We have noticed that it is on the aforesaid basis on which the High Court had proceeded to affirm the decree of dismissal of the suit. Having considered the facts of the case and the provisions of Section 12(c) of the Hindu Adoptions and Maintenance Act, 1956 we are of the view that the said provision would have no application to the present case. As already held by us, the plaintiff Gunamma was entitled to a share to the property of her husband Damodar way back in the year 1932 and, adoption being in the year 1978, on her death, the substituted plaintiff i.e. the adopted son must be understood to be legal heir in respect of the aforesaid property of the original plaintiff Gunamma. The argument raised on the strength of Section 12(c) of the Hindu Adoptions and Maintenance Act, 1956, therefore, has to fail.
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MAHADEV P KAMBEKAR(D) TR.LRS Vs. SHREE KRISHNA WOOLEN MILLS PVT. LTD
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true that Section 41 of the Small Cause Courts Act deals with such suits between the licensee and licensor while Section 28 of the Bombay Rent Act deals with suits between landlord and tenant. But the nature of such suits as contemplated by both these sections is the same, namely, it should be the suit relating to the recovery of possession of premises. Interpreting the phrase relating to recovery of possession as found in Section 28 of the Bombay Rent Act, a Bench of three learned Judges of this Court in the case of Babulal Bhuramal v. Nandram Shivram6 held that a suit for declaration that one of the plaintiffs was the tenant of the defendant landlord and the other plaintiffs were his sub¬ tenants and they were entitled to be protected from eviction squarely falls within the exclusive jurisdiction of the Small Cause Court, Bombay under Section 28 of the Bombay Rent Act and jurisdiction of the City Civil Court for entertaining such a suit is excluded. Imam, J. speaking for the three¬ Judge Bench in that case observed at page 374 of the report as under: The present suit filed in the City Civil Court raised in substance a claim to the effect that the plaintiffs were the tenants of the premises within the meaning of the Act. Such a claim was one which arose out of the Act or any of its provisions. The suit related to possession of the premises and the right of the landlord to evict any of the plaintiffs was denied on the ground that the first plaintiff was a tenant within the meaning of the Act and the premises had been lawfully sublet by him to the second and third plaintiffs. The City Civil Court was thus called upon to decide whether the first plaintiff was a tenant of the premises within the meaning of the Act and whether he had lawfully sublet the same to the second and third plaintiffs. The City Civil Court, therefore, had to determine whether the plaintiffs had established their claim to be in possession of the premises in accordance with the provisions of the Act. 25) In the light of the law laid down by this Court in Mansukhlals case (supra) which was later relied on in Prabhudas Damodar Kotecha & Ors. vs. Manhabala Jeram Damodar & Anr. [(2013) 15 SCC 358] , we have no hesitation in affirming the view taken by the High Court in the impugned judgment which rightly held that the counter¬claim filed by the defendant (appellants herein) is not maintainable. 26) In our considered view, the law laid down in these two cases has full application to the facts of this case and we find no ground to take a different view than what has been taken by the High Court. 27) The only distinction on the facts of the case of Mansukhlal (supra) and the case at hand is that in case of Mansukhlal (supra), the dispute was between the licensee and the licensor in relation to the land, whereas in the case at hand, the dispute is between the landlord and the tenant. 28) This factual distinction, in our view, is of no significance for deciding the issue in question against the appellants by placing reliance on the law laid down in the case of Mansukhlal (supra) because both the category of cases, i.e., the one arising between the licensor and the licensee and the other arising between the landlord and the tenant in relation to the land are governed by Section 41 of the Small Cause Courts Act. 29) In other words, whether it is a suit between the licensor and the licensee or between the landlord and the tenant, such types of suits fall under Section 41 of the Small Cause Courts Act and are, therefore, cognizable by the Courts of Small Causes, Bombay. 30) This takes us to deal with the next argument of Mr. Naphade, learned senior counsel for the appellants that once the tenancy is determined such suits would not come within the purview of Section 41 of the Small Cause Courts Act. This argument was rejected by the Division Bench and, in our view, rightly by placing reliance on the law laid down by the Bombay High Court in the case of Nagin Mansukhlal Dagli vs. Haribhai Manibhai Patel (AIR 1980 Bombay 123) (Para 8 of the said decision quoted in the impugned order). We approve the law laid down by the Bombay High Court in the case of Nagin Mansukhlal Dagli (supra) as laying down the correct principle of law. We, therefore, do not consider it necessary to elaborate our reasoning more than what we have said. 31) Before parting, we consider it apposite to make it clear that though both learned senior counsel in support of their respective submissions referred extensively to the factual matrix of the case from their respective list of dates, pleadings and the documents but we have refrained from recording any factual finding on any of the factual issues. 32) Indeed, in the light of what we have held supra on legal question, it is not necessary. It is now for the parties to raise all such factual issue(s) such as how much area was leased out, how much area is outside the lease, who are the owners of the leased area and the areas adjacent to leased area and all incidental questions arising therefrom before the competent Court. 33) It is apart from the fact that these factual issues were also not gone into by the Division Bench and indeed rightly. It is for this reason, we find no ground to deal with them for the first time in these appeals else it will cause prejudice to the rights of the parties while prosecuting their grievances before the competent Court. Now, it will be for the competent Court to come to its own conclusion on their respective merits and pass appropriate orders in accordance with law.
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0[ds]25) In the light of the law laid down by this Court in Mansukhlals case (supra) which was later relied on in Prabhudas Damodar Kotecha & Ors. vs. Manhabala Jeram Damodar & Anr. [(2013) 15 SCC 358] , we have no hesitation in affirming the view taken by the High Court in the impugned judgment which rightly held that the counter¬claim filed by the defendant (appellants herein) is not maintainable26) In our considered view, the law laid down in these two cases has full application to the facts of this case and we find no ground to take a different view than what has been taken by the High Court27) The only distinction on the facts of the case of Mansukhlal (supra) and the case at hand is that in case of Mansukhlal (supra), the dispute was between the licensee and the licensor in relation to the land, whereas in the case at hand, the dispute is between the landlord and the tenant28) This factual distinction, in our view, is of no significance for deciding the issue in question against the appellants by placing reliance on the law laid down in the case of Mansukhlal (supra) because both the category of cases, i.e., the one arising between the licensor and the licensee and the other arising between the landlord and the tenant in relation to the land are governed by Section 41 of the Small Cause Courts Act29) In other words, whether it is a suit between the licensor and the licensee or between the landlord and the tenant, such types of suits fall under Section 41 of the Small Cause Courts Act and are, therefore, cognizable by the Courts of Small Causes, Bombay30) This takes us to deal with the next argument of Mr. Naphade, learned senior counsel for the appellants that once the tenancy is determined such suits would not come within the purview of Section 41 of the Small Cause Courts Act. This argument was rejected by the Division Bench and, in our view, rightly by placing reliance on the law laid down by the Bombay High Court in the case of Nagin Mansukhlal Dagli vs. Haribhai Manibhai Patel (AIR 1980 Bombay 123) (Para 8 of the said decision quoted in the impugned order). We approve the law laid down by the Bombay High Court in the case of Nagin Mansukhlal Dagli (supra) as laying down the correct principle of law. We, therefore, do not consider it necessary to elaborate our reasoning more than what we have said31) Before parting, we consider it apposite to make it clear that though both learned senior counsel in support of their respective submissions referred extensively to the factual matrix of the case from their respective list of dates, pleadings and the documents but we have refrained from recording any factual finding on any of the factual issues32) Indeed, in the light of what we have held supra on legal question, it is not necessary. It is now for the parties to raise all such factual issue(s) such as how much area was leased out, how much area is outside the lease, who are the owners of the leased area and the areas adjacent to leased area and all incidental questions arising therefrom before the competent Court33) It is apart from the fact that these factual issues were also not gone into by the Division Bench and indeed rightly. It is for this reason, we find no ground to deal with them for the first time in these appeals else it will cause prejudice to the rights of the parties while prosecuting their grievances before the competent Court. Now, it will be for the competent Court to come to its own conclusion on their respective merits and pass appropriate orders in accordance with law.
| 0 | 3,322 | 704 |
### Instruction:
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true that Section 41 of the Small Cause Courts Act deals with such suits between the licensee and licensor while Section 28 of the Bombay Rent Act deals with suits between landlord and tenant. But the nature of such suits as contemplated by both these sections is the same, namely, it should be the suit relating to the recovery of possession of premises. Interpreting the phrase relating to recovery of possession as found in Section 28 of the Bombay Rent Act, a Bench of three learned Judges of this Court in the case of Babulal Bhuramal v. Nandram Shivram6 held that a suit for declaration that one of the plaintiffs was the tenant of the defendant landlord and the other plaintiffs were his sub¬ tenants and they were entitled to be protected from eviction squarely falls within the exclusive jurisdiction of the Small Cause Court, Bombay under Section 28 of the Bombay Rent Act and jurisdiction of the City Civil Court for entertaining such a suit is excluded. Imam, J. speaking for the three¬ Judge Bench in that case observed at page 374 of the report as under: The present suit filed in the City Civil Court raised in substance a claim to the effect that the plaintiffs were the tenants of the premises within the meaning of the Act. Such a claim was one which arose out of the Act or any of its provisions. The suit related to possession of the premises and the right of the landlord to evict any of the plaintiffs was denied on the ground that the first plaintiff was a tenant within the meaning of the Act and the premises had been lawfully sublet by him to the second and third plaintiffs. The City Civil Court was thus called upon to decide whether the first plaintiff was a tenant of the premises within the meaning of the Act and whether he had lawfully sublet the same to the second and third plaintiffs. The City Civil Court, therefore, had to determine whether the plaintiffs had established their claim to be in possession of the premises in accordance with the provisions of the Act. 25) In the light of the law laid down by this Court in Mansukhlals case (supra) which was later relied on in Prabhudas Damodar Kotecha & Ors. vs. Manhabala Jeram Damodar & Anr. [(2013) 15 SCC 358] , we have no hesitation in affirming the view taken by the High Court in the impugned judgment which rightly held that the counter¬claim filed by the defendant (appellants herein) is not maintainable. 26) In our considered view, the law laid down in these two cases has full application to the facts of this case and we find no ground to take a different view than what has been taken by the High Court. 27) The only distinction on the facts of the case of Mansukhlal (supra) and the case at hand is that in case of Mansukhlal (supra), the dispute was between the licensee and the licensor in relation to the land, whereas in the case at hand, the dispute is between the landlord and the tenant. 28) This factual distinction, in our view, is of no significance for deciding the issue in question against the appellants by placing reliance on the law laid down in the case of Mansukhlal (supra) because both the category of cases, i.e., the one arising between the licensor and the licensee and the other arising between the landlord and the tenant in relation to the land are governed by Section 41 of the Small Cause Courts Act. 29) In other words, whether it is a suit between the licensor and the licensee or between the landlord and the tenant, such types of suits fall under Section 41 of the Small Cause Courts Act and are, therefore, cognizable by the Courts of Small Causes, Bombay. 30) This takes us to deal with the next argument of Mr. Naphade, learned senior counsel for the appellants that once the tenancy is determined such suits would not come within the purview of Section 41 of the Small Cause Courts Act. This argument was rejected by the Division Bench and, in our view, rightly by placing reliance on the law laid down by the Bombay High Court in the case of Nagin Mansukhlal Dagli vs. Haribhai Manibhai Patel (AIR 1980 Bombay 123) (Para 8 of the said decision quoted in the impugned order). We approve the law laid down by the Bombay High Court in the case of Nagin Mansukhlal Dagli (supra) as laying down the correct principle of law. We, therefore, do not consider it necessary to elaborate our reasoning more than what we have said. 31) Before parting, we consider it apposite to make it clear that though both learned senior counsel in support of their respective submissions referred extensively to the factual matrix of the case from their respective list of dates, pleadings and the documents but we have refrained from recording any factual finding on any of the factual issues. 32) Indeed, in the light of what we have held supra on legal question, it is not necessary. It is now for the parties to raise all such factual issue(s) such as how much area was leased out, how much area is outside the lease, who are the owners of the leased area and the areas adjacent to leased area and all incidental questions arising therefrom before the competent Court. 33) It is apart from the fact that these factual issues were also not gone into by the Division Bench and indeed rightly. It is for this reason, we find no ground to deal with them for the first time in these appeals else it will cause prejudice to the rights of the parties while prosecuting their grievances before the competent Court. Now, it will be for the competent Court to come to its own conclusion on their respective merits and pass appropriate orders in accordance with law.
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### Explanation:
25) In the light of the law laid down by this Court in Mansukhlals case (supra) which was later relied on in Prabhudas Damodar Kotecha & Ors. vs. Manhabala Jeram Damodar & Anr. [(2013) 15 SCC 358] , we have no hesitation in affirming the view taken by the High Court in the impugned judgment which rightly held that the counter¬claim filed by the defendant (appellants herein) is not maintainable26) In our considered view, the law laid down in these two cases has full application to the facts of this case and we find no ground to take a different view than what has been taken by the High Court27) The only distinction on the facts of the case of Mansukhlal (supra) and the case at hand is that in case of Mansukhlal (supra), the dispute was between the licensee and the licensor in relation to the land, whereas in the case at hand, the dispute is between the landlord and the tenant28) This factual distinction, in our view, is of no significance for deciding the issue in question against the appellants by placing reliance on the law laid down in the case of Mansukhlal (supra) because both the category of cases, i.e., the one arising between the licensor and the licensee and the other arising between the landlord and the tenant in relation to the land are governed by Section 41 of the Small Cause Courts Act29) In other words, whether it is a suit between the licensor and the licensee or between the landlord and the tenant, such types of suits fall under Section 41 of the Small Cause Courts Act and are, therefore, cognizable by the Courts of Small Causes, Bombay30) This takes us to deal with the next argument of Mr. Naphade, learned senior counsel for the appellants that once the tenancy is determined such suits would not come within the purview of Section 41 of the Small Cause Courts Act. This argument was rejected by the Division Bench and, in our view, rightly by placing reliance on the law laid down by the Bombay High Court in the case of Nagin Mansukhlal Dagli vs. Haribhai Manibhai Patel (AIR 1980 Bombay 123) (Para 8 of the said decision quoted in the impugned order). We approve the law laid down by the Bombay High Court in the case of Nagin Mansukhlal Dagli (supra) as laying down the correct principle of law. We, therefore, do not consider it necessary to elaborate our reasoning more than what we have said31) Before parting, we consider it apposite to make it clear that though both learned senior counsel in support of their respective submissions referred extensively to the factual matrix of the case from their respective list of dates, pleadings and the documents but we have refrained from recording any factual finding on any of the factual issues32) Indeed, in the light of what we have held supra on legal question, it is not necessary. It is now for the parties to raise all such factual issue(s) such as how much area was leased out, how much area is outside the lease, who are the owners of the leased area and the areas adjacent to leased area and all incidental questions arising therefrom before the competent Court33) It is apart from the fact that these factual issues were also not gone into by the Division Bench and indeed rightly. It is for this reason, we find no ground to deal with them for the first time in these appeals else it will cause prejudice to the rights of the parties while prosecuting their grievances before the competent Court. Now, it will be for the competent Court to come to its own conclusion on their respective merits and pass appropriate orders in accordance with law.
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Swami Parmatmanand Saraswati & Anr, Vs. Ramji Tripathi & Anr
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reason why the same principle should not apply, if what the plaintiffs seek to vindicate here is the individual or personal right of Kirshnabodhashram to be installed as Shankaracharay of the Math. Where two or more persons interested in a trust a suit purporting to be under Section 92, the question whether the suit is to vindicate the personal or individual right of a third person or to assert the right of the public must be decided after taking into account the dominant purpose of the suit in the light of the allegations in the plaint. If, on the allegations in the plaint, it is clear that the purpose of the suit was to vindicate the individual right of Krishnabodhashram to be the Shankaracharya, there is no reason to hold that suit was brought to uphold the right of the beneficiaries of the trust, merely because the suit was filed by two more members of the public after obtaining the sanction of the Advocate General and claiming one or more of the reliefs specified in the section. There is no reason to think that whenever a suit is brought by two or more persons under Section 92, the suit is to vindicate the right of the public. As we said, it is the object or the purpose of the suit and not the reliefs that should decide whether it is one for vindicating the right of the public or the individual right of the plaintiffs or third persons.12. The Trial Court, after reading the allegations in the plaint and after looking into the entire evidence in the case, came to the conclusion that the suit was primarily one for declaration that Krishanbodhashram was duly installed as the Shankaracharya of the Math on June 25,1953 and that respondent No. 1 had no right to be nominated as the Head of the Math by Brahmanand as he did not possess the requisite qualification and that his possession of the trust property was only in the capacity of a trustee de son tort, and so he must be removed from the headship of the Math. The high court saw no reason to differ from the finding. We would be slow to disturb a finding of this nature especially when we see that the allegation in the plaint are reasonably susceptible of being so read. We think that the purpose of the suit was to settle the controversy as to whether Krishnabodhashram or respondent No.1 had the better claim to the headship of the Math and to the possession and management of its properties by obtaining a declaration of the court. If the real purpose in bringing the suit was to vindicate the general right of the public to have the rightful claimant appointed to the office, there was no reason why the plaintiffs omitted to implead or at least refer in the plaint to the three persons nominated by Brahmanand in his will to succeed him in the order indicated therein especially when it is seen that the plaintiffs accepted the customs of the Math to have the successor nominated by the incumbent for the time being of the office of Shankracharya.13. The Trial Court as well as the High Court found that there was no evidence to substantiate the allegations regarding the breach of trust said to have been committed by respondent No. 1. In paragraph 20 of the plaint, there was an allegation that the direction of the Court was necessary for the administration of the trust. But no reasons were given in the plaint why the plaintiffs were seeking the direction of the Court. There were no clear allegations of maladministration viz. that respondent No. 1 was diverting the trust properties for his personal benefit or that he was committing any devastative. The High Court was of the view that since the plaintiffs did not plead facts and particulars as regards the defect in the machinery for administration which had crept in under custom or rules which required rectification, the prayer for direction was a mere pretence to bring the suit under Section 92. A direction cannot be given by the court unless it is shown that it is necessary for the proper administration of the trust. We do not think it necessary to decide for the purpose of this case whether the words " where the direction of the Court is deemed necessary for the administration of any such trust" must be interpreted as meaning that where the Court has to give directions in the nature of framing a scheme or otherwise for the administration of trust or whether those words can refer only to directions given to existing trustee when there is one or two new trustees when one is to be appointed or to directions when there are allegations of maladministration amounting to breach of trust. It is sufficient for the purpose of this case to say that the prayer for direction was a prayer in vacuum without any basis in reason or facts.14. It is, no doubt, true that it is only the allegations in the plaint that should be looked into in the first instance to see whether the suit falls within the ambit of Section 92 (See Association of R.D.B. Bagga Singh v. Gurnam Singh, AIR 1972 Raj 263 ; Sohan Singh v. Achhar Singh, AIR 1968 Punj and Har 463 and Radha Krishna v. Lachhmi Narain, AIR 1948 Oudh 203). But, if after evidence is taken, it is found that the breach of trust alleged has not been made out and that the prayer for direction of the court is vague and is not based on any solid foundation in facts or reason but is made only with a view to bring the suit under the section, than a suit purporting to be brought under Section 92 must be dismissed. This was one of the grounds relied on by the High Court for holding that the suit was not maintainable under Sec. 92.
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0[ds]9. It is clear from the allegations in the plaint that the plaintiffs primarily wanted a declaration from Court that Krishnabodhashram was duly installed as the Shankaracharya of the Math on June 25, 1953, that he came into possession of the properties of the Math and, therefore, the Court should appoint him as the Shankaracharya of the Math. In order to enable the Court to give that declaration, the plaintiffs wanted a declaration that the will nominating respondent No.1 as successor of Brahmanand was not executed by Brahmanand when he was in a sound disposing state of mind and that even if the will was validly executed, respondent No.1 did not have the requisite learning in Sanskrit and the Vedas and so, he was not qualified to be nominated as the Head of the Math and therefore, his installation as the Shankaracharaya of the Math of June 12, 1953, was invalid. There was no allegation in the plaint questioning or even casting any doubt on the validity of the installation of Krishnabodhashram as the Shankaracharya of the Math and there was also no allegation against him as respects his management of the trust properties. Then, how was it that the plaintiffs prayed in the alternative for appointment of some other person as Shankaracharya? The relief for the appointment of Krishnabodharshram as the Shankaracharya of the Math by the Court and the alternative relief to appoint some other person as the Shankaracharya, without any allegation as to the circumstance which would invalidate the installation of Krishnabodhashram and without impleading him as a party to the suit would show the strain of the draftsman to dress up the plaint with prayers to make it appear that the plaintiffs were the disinterested champions of the right of the public and not the mere partisan advocates of the personal cause of Krishnabodashram.We see no reason why the same principle should not apply, if what the plaintiffs seek to vindicate here is the individual or personal right of Kirshnabodhashram to be installed as Shankaracharay of the Math. Where two or more persons interested in a trust a suit purporting to be under Section 92, the question whether the suit is to vindicate the personal or individual right of a third person or to assert the right of the public must be decided after taking into account the dominant purpose of the suit in the light of the allegations in the plaint. If, on the allegations in the plaint, it is clear that the purpose of the suit was to vindicate the individual right of Krishnabodhashram to be the Shankaracharya, there is no reason to hold that suit was brought to uphold the right of the beneficiaries of the trust, merely because the suit was filed by two more members of the public after obtaining the sanction of the Advocate General and claiming one or more of the reliefs specified in the section. There is no reason to think that whenever a suit is brought by two or more persons under Section 92, the suit is to vindicate the right of the public. As we said, it is the object or the purpose of the suit and not the reliefs that should decide whether it is one for vindicating the right of the public or the individual right of the plaintiffs or third persons.The Trial Court as well as the High Court found that there was no evidence to substantiate the allegations regarding the breach of trust said to have been committed by respondent No. 1. In paragraph 20 of the plaint, there was an allegation that the direction of the Court was necessary for the administration of the trust. But no reasons were given in the plaint why the plaintiffs were seeking the direction of the Court. There were no clear allegations of maladministration viz. that respondent No. 1 was diverting the trust properties for his personal benefit or that he was committing any devastative. The High Court was of the view that since the plaintiffs did not plead facts and particulars as regards the defect in the machinery for administration which had crept in under custom or rules which required rectification, the prayer for direction was a mere pretence to bring the suit under Section 92. A direction cannot be given by the court unless it is shown that it is necessary for the proper administration of the trust. We do not think it necessary to decide for the purpose of this case whether the words " where the direction of the Court is deemed necessary for the administration of any such trust" must be interpreted as meaning that where the Court has to give directions in the nature of framing a scheme or otherwise for the administration of trust or whether those words can refer only to directions given to existing trustee when there is one or two new trustees when one is to be appointed or to directions when there are allegations of maladministration amounting to breach of trust. It is sufficient for the purpose of this case to say that the prayer for direction was a prayer in vacuum without any basis in reason or facts.14. It is, no doubt, true that it is only the allegations in the plaint that should be looked into in the first instance to see whether the suit falls within the ambit of SectionBut, if after evidence is taken, it is found that the breach of trust alleged has not been made out and that the prayer for direction of the court is vague and is not based on any solid foundation in facts or reason but is made only with a view to bring the suit under the section, than a suit purporting to be brought under Section 92 must be dismissed. This was one of the grounds relied on by the High Court for holding that the suit was not maintainable under Sec. 92.
| 0 | 2,894 | 1,047 |
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reason why the same principle should not apply, if what the plaintiffs seek to vindicate here is the individual or personal right of Kirshnabodhashram to be installed as Shankaracharay of the Math. Where two or more persons interested in a trust a suit purporting to be under Section 92, the question whether the suit is to vindicate the personal or individual right of a third person or to assert the right of the public must be decided after taking into account the dominant purpose of the suit in the light of the allegations in the plaint. If, on the allegations in the plaint, it is clear that the purpose of the suit was to vindicate the individual right of Krishnabodhashram to be the Shankaracharya, there is no reason to hold that suit was brought to uphold the right of the beneficiaries of the trust, merely because the suit was filed by two more members of the public after obtaining the sanction of the Advocate General and claiming one or more of the reliefs specified in the section. There is no reason to think that whenever a suit is brought by two or more persons under Section 92, the suit is to vindicate the right of the public. As we said, it is the object or the purpose of the suit and not the reliefs that should decide whether it is one for vindicating the right of the public or the individual right of the plaintiffs or third persons.12. The Trial Court, after reading the allegations in the plaint and after looking into the entire evidence in the case, came to the conclusion that the suit was primarily one for declaration that Krishanbodhashram was duly installed as the Shankaracharya of the Math on June 25,1953 and that respondent No. 1 had no right to be nominated as the Head of the Math by Brahmanand as he did not possess the requisite qualification and that his possession of the trust property was only in the capacity of a trustee de son tort, and so he must be removed from the headship of the Math. The high court saw no reason to differ from the finding. We would be slow to disturb a finding of this nature especially when we see that the allegation in the plaint are reasonably susceptible of being so read. We think that the purpose of the suit was to settle the controversy as to whether Krishnabodhashram or respondent No.1 had the better claim to the headship of the Math and to the possession and management of its properties by obtaining a declaration of the court. If the real purpose in bringing the suit was to vindicate the general right of the public to have the rightful claimant appointed to the office, there was no reason why the plaintiffs omitted to implead or at least refer in the plaint to the three persons nominated by Brahmanand in his will to succeed him in the order indicated therein especially when it is seen that the plaintiffs accepted the customs of the Math to have the successor nominated by the incumbent for the time being of the office of Shankracharya.13. The Trial Court as well as the High Court found that there was no evidence to substantiate the allegations regarding the breach of trust said to have been committed by respondent No. 1. In paragraph 20 of the plaint, there was an allegation that the direction of the Court was necessary for the administration of the trust. But no reasons were given in the plaint why the plaintiffs were seeking the direction of the Court. There were no clear allegations of maladministration viz. that respondent No. 1 was diverting the trust properties for his personal benefit or that he was committing any devastative. The High Court was of the view that since the plaintiffs did not plead facts and particulars as regards the defect in the machinery for administration which had crept in under custom or rules which required rectification, the prayer for direction was a mere pretence to bring the suit under Section 92. A direction cannot be given by the court unless it is shown that it is necessary for the proper administration of the trust. We do not think it necessary to decide for the purpose of this case whether the words " where the direction of the Court is deemed necessary for the administration of any such trust" must be interpreted as meaning that where the Court has to give directions in the nature of framing a scheme or otherwise for the administration of trust or whether those words can refer only to directions given to existing trustee when there is one or two new trustees when one is to be appointed or to directions when there are allegations of maladministration amounting to breach of trust. It is sufficient for the purpose of this case to say that the prayer for direction was a prayer in vacuum without any basis in reason or facts.14. It is, no doubt, true that it is only the allegations in the plaint that should be looked into in the first instance to see whether the suit falls within the ambit of Section 92 (See Association of R.D.B. Bagga Singh v. Gurnam Singh, AIR 1972 Raj 263 ; Sohan Singh v. Achhar Singh, AIR 1968 Punj and Har 463 and Radha Krishna v. Lachhmi Narain, AIR 1948 Oudh 203). But, if after evidence is taken, it is found that the breach of trust alleged has not been made out and that the prayer for direction of the court is vague and is not based on any solid foundation in facts or reason but is made only with a view to bring the suit under the section, than a suit purporting to be brought under Section 92 must be dismissed. This was one of the grounds relied on by the High Court for holding that the suit was not maintainable under Sec. 92.
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### Explanation:
9. It is clear from the allegations in the plaint that the plaintiffs primarily wanted a declaration from Court that Krishnabodhashram was duly installed as the Shankaracharya of the Math on June 25, 1953, that he came into possession of the properties of the Math and, therefore, the Court should appoint him as the Shankaracharya of the Math. In order to enable the Court to give that declaration, the plaintiffs wanted a declaration that the will nominating respondent No.1 as successor of Brahmanand was not executed by Brahmanand when he was in a sound disposing state of mind and that even if the will was validly executed, respondent No.1 did not have the requisite learning in Sanskrit and the Vedas and so, he was not qualified to be nominated as the Head of the Math and therefore, his installation as the Shankaracharaya of the Math of June 12, 1953, was invalid. There was no allegation in the plaint questioning or even casting any doubt on the validity of the installation of Krishnabodhashram as the Shankaracharya of the Math and there was also no allegation against him as respects his management of the trust properties. Then, how was it that the plaintiffs prayed in the alternative for appointment of some other person as Shankaracharya? The relief for the appointment of Krishnabodharshram as the Shankaracharya of the Math by the Court and the alternative relief to appoint some other person as the Shankaracharya, without any allegation as to the circumstance which would invalidate the installation of Krishnabodhashram and without impleading him as a party to the suit would show the strain of the draftsman to dress up the plaint with prayers to make it appear that the plaintiffs were the disinterested champions of the right of the public and not the mere partisan advocates of the personal cause of Krishnabodashram.We see no reason why the same principle should not apply, if what the plaintiffs seek to vindicate here is the individual or personal right of Kirshnabodhashram to be installed as Shankaracharay of the Math. Where two or more persons interested in a trust a suit purporting to be under Section 92, the question whether the suit is to vindicate the personal or individual right of a third person or to assert the right of the public must be decided after taking into account the dominant purpose of the suit in the light of the allegations in the plaint. If, on the allegations in the plaint, it is clear that the purpose of the suit was to vindicate the individual right of Krishnabodhashram to be the Shankaracharya, there is no reason to hold that suit was brought to uphold the right of the beneficiaries of the trust, merely because the suit was filed by two more members of the public after obtaining the sanction of the Advocate General and claiming one or more of the reliefs specified in the section. There is no reason to think that whenever a suit is brought by two or more persons under Section 92, the suit is to vindicate the right of the public. As we said, it is the object or the purpose of the suit and not the reliefs that should decide whether it is one for vindicating the right of the public or the individual right of the plaintiffs or third persons.The Trial Court as well as the High Court found that there was no evidence to substantiate the allegations regarding the breach of trust said to have been committed by respondent No. 1. In paragraph 20 of the plaint, there was an allegation that the direction of the Court was necessary for the administration of the trust. But no reasons were given in the plaint why the plaintiffs were seeking the direction of the Court. There were no clear allegations of maladministration viz. that respondent No. 1 was diverting the trust properties for his personal benefit or that he was committing any devastative. The High Court was of the view that since the plaintiffs did not plead facts and particulars as regards the defect in the machinery for administration which had crept in under custom or rules which required rectification, the prayer for direction was a mere pretence to bring the suit under Section 92. A direction cannot be given by the court unless it is shown that it is necessary for the proper administration of the trust. We do not think it necessary to decide for the purpose of this case whether the words " where the direction of the Court is deemed necessary for the administration of any such trust" must be interpreted as meaning that where the Court has to give directions in the nature of framing a scheme or otherwise for the administration of trust or whether those words can refer only to directions given to existing trustee when there is one or two new trustees when one is to be appointed or to directions when there are allegations of maladministration amounting to breach of trust. It is sufficient for the purpose of this case to say that the prayer for direction was a prayer in vacuum without any basis in reason or facts.14. It is, no doubt, true that it is only the allegations in the plaint that should be looked into in the first instance to see whether the suit falls within the ambit of SectionBut, if after evidence is taken, it is found that the breach of trust alleged has not been made out and that the prayer for direction of the court is vague and is not based on any solid foundation in facts or reason but is made only with a view to bring the suit under the section, than a suit purporting to be brought under Section 92 must be dismissed. This was one of the grounds relied on by the High Court for holding that the suit was not maintainable under Sec. 92.
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Venkatesan Vs. State Of Tamil Nadu
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State of Maharashtra, (AIR 1984 SC 1622 ). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of the this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;(3) the circumstances should be of a conclusive nature and tendency;(4) they should exclude every possible hypothesis except the one to be proved; and(5) there must be a chain of evidence so compete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 11. Coming to the factual scenario it is to be noted that as rightly contented by learned counsel for the appellant, that PW 4 did not say that he had seen the appellant and the deceased on any particular date. He had merely stated that he had seen them on a Tuesday. The trial court and the High Court without anything further came to hold that he meant 19.4.1988, because he stated that he saw them on Tuesday. Similarly PW 9 has stated that he did not know as to which of the accused i.e. whether A1 or A2 came with the deceased. Interestingly he stated that only after an enquiry by the inspector, he came to know the name of the appellant. He has also stated that on a Tuesday night he had seen him. He does not speak of any date. He also admitted in cross examination that he does not remember who comes for taking drinks as several persons were coming for taking drinks. It was not explained as to how he remembered at the time of his examination in Court which was after about 2 = years of the alleged date of occurrence to have seen accused and the deceased together. So far as the PW 8 is concerned he had identified A2 for the first time in Court. In his cross examination he accepted that he saw the appellant for the first time after the day on which he had seen him. Before that he did not see A2 and he did not give any identification mark of A2 to police.12. He has further admitted that after pointing out the appellant, the police enquired as to whether he had seen the person. 13. So far as the last seen aspect is concerned it is necessary to take note of two decisions of this court. In State of U.P. v. Satish [2005(3) SCC 114] it was noted as follows: "22. The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2." 14. In Ramreddy Rajesh Khanna Reddy v. State of A.P. [2006 (10) SCC 172 ] it was noted as follows: "27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration.28. In State of U.P. v. Satish [2005 (3) SCC 114 ] this Court observed: (SCC p. 123, para 22)"22. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2." (See also Bodhraj v. State of J&K (2002 (8) SCC 45 ).)" 15. A similar view was also taken in Jaswant Gir v. State of Punjab [2005(12) SCC 438]. 16. Above being the position, the inevitable conclusion is that the trial court and the High Court were not justified in directing conviction of the appellant. He is acquitted of the charges. The bail bonds executed pursuant to the order granting bail shall stand discharged.
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1[ds]2. Before analyzing factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed.3. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any othercircumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.Coming to the factual scenario it is to be noted that as rightly contented by learned counsel for the appellant, that PW 4 did not say that he had seen the appellant and the deceased on any particular date. He had merely stated that he had seen them on a Tuesday. The trial court and the High Court without anything further came to hold that he meant 19.4.1988, because he stated that he saw them on Tuesday. Similarly PW 9 has stated that he did not know as to which of the accused i.e. whether A1 or A2 came with the deceased. Interestingly he stated that only after an enquiry by the inspector, he came to know the name of the appellant. He has also stated that on a Tuesday night he had seen him. He does not speak of any date. He also admitted in cross examination that he does not remember who comes for taking drinks as several persons were coming for taking drinks. It was not explained as to how he remembered at the time of his examination in Court which was after about 2 = years of the alleged date of occurrence to have seen accused and the deceased together. So far as the PW 8 is concerned he had identified A2 for the first time in Court. In his cross examination he accepted that he saw the appellant for the first time after the day on which he had seen him. Before that he did not see A2 and he did not give any identification mark of A2 to police.12. He has further admitted that after pointing out the appellant, the police enquired as to whether he had seen the person.Above being the position, the inevitable conclusion is that the trial court and the High Court were not justified in directing conviction of the appellant. He is acquitted of the charges. The bail bonds executed pursuant to the order granting bail shall stand discharged.So far as the last seen aspect is concerned it is necessary to take note of two decisions of this court. In State of U.P. v. Satish [2005(3) SCC 114] it was noted asThe last seen theory comes into play where theIn Ramreddy Rajesh Khanna Reddy v. State of A.P. [2006 (10) SCC 172 ] it was noted asen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration.28. In State of U.P. v. Satish [2005 (3) SCC 114 ] this Court observed: (SCC p. 123, para 22)"22. Thetheory comes into play where thebetween the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2." (See also Bodhraj v. State of J&K (2002 (8) SCC 45 ).A similar view was also taken in Jaswant Gir v. State of Punjab [2005(12) SCC 438].
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### 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:
State of Maharashtra, (AIR 1984 SC 1622 ). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of the this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;(3) the circumstances should be of a conclusive nature and tendency;(4) they should exclude every possible hypothesis except the one to be proved; and(5) there must be a chain of evidence so compete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 11. Coming to the factual scenario it is to be noted that as rightly contented by learned counsel for the appellant, that PW 4 did not say that he had seen the appellant and the deceased on any particular date. He had merely stated that he had seen them on a Tuesday. The trial court and the High Court without anything further came to hold that he meant 19.4.1988, because he stated that he saw them on Tuesday. Similarly PW 9 has stated that he did not know as to which of the accused i.e. whether A1 or A2 came with the deceased. Interestingly he stated that only after an enquiry by the inspector, he came to know the name of the appellant. He has also stated that on a Tuesday night he had seen him. He does not speak of any date. He also admitted in cross examination that he does not remember who comes for taking drinks as several persons were coming for taking drinks. It was not explained as to how he remembered at the time of his examination in Court which was after about 2 = years of the alleged date of occurrence to have seen accused and the deceased together. So far as the PW 8 is concerned he had identified A2 for the first time in Court. In his cross examination he accepted that he saw the appellant for the first time after the day on which he had seen him. Before that he did not see A2 and he did not give any identification mark of A2 to police.12. He has further admitted that after pointing out the appellant, the police enquired as to whether he had seen the person. 13. So far as the last seen aspect is concerned it is necessary to take note of two decisions of this court. In State of U.P. v. Satish [2005(3) SCC 114] it was noted as follows: "22. The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2." 14. In Ramreddy Rajesh Khanna Reddy v. State of A.P. [2006 (10) SCC 172 ] it was noted as follows: "27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration.28. In State of U.P. v. Satish [2005 (3) SCC 114 ] this Court observed: (SCC p. 123, para 22)"22. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2." (See also Bodhraj v. State of J&K (2002 (8) SCC 45 ).)" 15. A similar view was also taken in Jaswant Gir v. State of Punjab [2005(12) SCC 438]. 16. Above being the position, the inevitable conclusion is that the trial court and the High Court were not justified in directing conviction of the appellant. He is acquitted of the charges. The bail bonds executed pursuant to the order granting bail shall stand discharged.
### Response:
1
### Explanation:
2. Before analyzing factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed.3. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any othercircumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.Coming to the factual scenario it is to be noted that as rightly contented by learned counsel for the appellant, that PW 4 did not say that he had seen the appellant and the deceased on any particular date. He had merely stated that he had seen them on a Tuesday. The trial court and the High Court without anything further came to hold that he meant 19.4.1988, because he stated that he saw them on Tuesday. Similarly PW 9 has stated that he did not know as to which of the accused i.e. whether A1 or A2 came with the deceased. Interestingly he stated that only after an enquiry by the inspector, he came to know the name of the appellant. He has also stated that on a Tuesday night he had seen him. He does not speak of any date. He also admitted in cross examination that he does not remember who comes for taking drinks as several persons were coming for taking drinks. It was not explained as to how he remembered at the time of his examination in Court which was after about 2 = years of the alleged date of occurrence to have seen accused and the deceased together. So far as the PW 8 is concerned he had identified A2 for the first time in Court. In his cross examination he accepted that he saw the appellant for the first time after the day on which he had seen him. Before that he did not see A2 and he did not give any identification mark of A2 to police.12. He has further admitted that after pointing out the appellant, the police enquired as to whether he had seen the person.Above being the position, the inevitable conclusion is that the trial court and the High Court were not justified in directing conviction of the appellant. He is acquitted of the charges. The bail bonds executed pursuant to the order granting bail shall stand discharged.So far as the last seen aspect is concerned it is necessary to take note of two decisions of this court. In State of U.P. v. Satish [2005(3) SCC 114] it was noted asThe last seen theory comes into play where theIn Ramreddy Rajesh Khanna Reddy v. State of A.P. [2006 (10) SCC 172 ] it was noted asen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration.28. In State of U.P. v. Satish [2005 (3) SCC 114 ] this Court observed: (SCC p. 123, para 22)"22. Thetheory comes into play where thebetween the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2." (See also Bodhraj v. State of J&K (2002 (8) SCC 45 ).A similar view was also taken in Jaswant Gir v. State of Punjab [2005(12) SCC 438].
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Oriental Insurance Company Ltd Vs. Jashuben
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imponderables e.g. the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependants during that period, the chances that the deceased may not have lived or the dependants may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or might have lost his employment or income together. 9. The manner of arriving at the damages is to ascertain the net income of the deceased available for the support of himself and his dependants, and to deduct therefrom such part of his income as the deceased was accustomed to spend upon himself, as regards both self-maintenance and pleasure, and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependants. Then that should be capitalised by multiplying it by a figure representing the proper number of years purchase. 10. Much of the calculation necessarily remains in the realm of hypothesis and in that region arithmetic is a good servant but a bad master since there are so often many imponderables. In every case it is the overall picture that matters, and the court must try to assess as best as it can the loss suffered. 19. The same view was reiterated in New India Assurance Co. Ltd. v. Charlie and Anr. [(2005) 10 SCC 720] . However, therein although the words net income has been used but the same would ordinarily mean gross income minus the statutory deductions. We must also notice that the said decision has been followed in New India Assurance Co. Ltd. v. Kalpana (Smt.) and Ors. [(2007) 3 SCC 538] . 20. In Bijoy Kumar Dugar v. Bidya Dhar Dutta & Ors. [(2006) 3 SCC 242] , this Court, in a case where the salary of the deceased was found to be Rs.3600/- after deduction and wherein multiplier of 12 was applied where the age of the parents of the deceased was between 45 and 50 years, held that no further enhancement was warranted. 21. In U.P. State Road Transport Corporation v. Krishna Bala & Ors. [(2006) 6 SCC 249] , it was held: The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants, whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed over the period for which the dependency is expected to last. 22. Therein a multiplier of 13 was adopted in a case where the age of the deceased was around 36. 23. Almost to the same effect is the decision of this Court in The Managing Director, TNSTC v. Sripriya & Ors. [2007 (4) SCALE 222 ]. In that case, a multiplier of 12 was applied in a case where the age of the deceased was 37 years. 24. Even certain allowances payable to the deceased could have been taken into consideration in the changing social scenario. In National Insurance Company Ltd. v. Indira Srivastava & Ors. [2007 (14) SCALE 461 ], it is useful to notice, this Court observed: 17. The amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were for his benefit. We may, however, hasten to add that from the said amount of income, the statutory amount of tax payable thereupon must be deducted. Noticing the dictionary meaning of income, it was held: 19. If the dictionary meaning of the word income is taken to its logical conclusion, it should include those benefits, either in terms of money or otherwise, which are taken into consideration for the purpose of payment of income-tax or profession tax although some elements thereof may or may not be taxable or would have been otherwise taxable but for the exemption conferred thereupon under the statute. 25. We, therefore, are of the opinion that what would have been the income of the deceased on the date of retirement was not a relevant factor in the light of peculiar facts of this case and, thus, the approach of the Tribunal and the High Court must be held to be incorrect. It is impermissible in law to take into consideration the effect of revision in scale of pay w.e.f. 1.1.1997 or what would have been the scale of pay in 2002. 26. The loss of dependency, in our opinion, should be calculated on the basis as if the basic pay of the deceased been Rs. 3295/- X 2 = Rs. 6,590/-, thereto should be added 18.5% dearness allowance which comes to Rs.1219/-, child education allowance for two children @ Rs.240/- X 2 = Rs.480 and child bus fair Rs.160 X 2 = Rs.320/- should have been added which comes to Rs.8,609/-. 27. From the aforementioned figure 1/3rd should be deducted. After deduction, the amount of income comes to Rs.5,738/- per month [Rs.8609/- - Rs.2871/-] and the amount of compensation should be determined by adopting the multiplier of 13, which comes to Rs.8,95,128/- 28. In the present case, the High Court itself has applied the multiplier of 13. We are of the opinion that no interference therewith is warranted. We furthermore do not intend to interfere with the rate of interest in the facts and circumstance of the case. 29.
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1[ds]We, therefore, are of the opinion that what would have been the income of the deceased on the date of retirement was not a relevant factor in the light of peculiar facts of this case and, thus, the approach of the Tribunal and the High Court must be held to be incorrect. It is impermissible in law to take into consideration the effect of revision in scale of pay w.e.f. 1.1.1997 or what would have been the scale of pay in 200226. The loss of dependency, in our opinion, should be calculated on the basis as if the basic pay of the deceased been Rs. 3295/- X 2 = Rs. 6,590/-, thereto should be added 18.5% dearness allowance which comes to Rs.1219/-, child education allowance for two children @ Rs.240/- X 2 = Rs.480 and child bus fair Rs.160 X 2 = Rs.320/- should have been added which comes to Rs.8,609/-27. From the aforementioned figure 1/3rd should be deducted. After deduction, the amount of income comes to Rs.5,738/- per month [Rs.8609/- - Rs.2871/-] and the amount of compensation should be determined by adopting the multiplier of 13, which comes to Rs.8,95,128/-28. In the present case, the High Court itself has applied the multiplier of 13. We are of the opinion that no interference therewith is warranted. We furthermore do not intend to interfere with the rate of interest in the facts and circumstance of the case.
| 1 | 3,402 | 265 |
### 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:
imponderables e.g. the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependants during that period, the chances that the deceased may not have lived or the dependants may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or might have lost his employment or income together. 9. The manner of arriving at the damages is to ascertain the net income of the deceased available for the support of himself and his dependants, and to deduct therefrom such part of his income as the deceased was accustomed to spend upon himself, as regards both self-maintenance and pleasure, and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependants. Then that should be capitalised by multiplying it by a figure representing the proper number of years purchase. 10. Much of the calculation necessarily remains in the realm of hypothesis and in that region arithmetic is a good servant but a bad master since there are so often many imponderables. In every case it is the overall picture that matters, and the court must try to assess as best as it can the loss suffered. 19. The same view was reiterated in New India Assurance Co. Ltd. v. Charlie and Anr. [(2005) 10 SCC 720] . However, therein although the words net income has been used but the same would ordinarily mean gross income minus the statutory deductions. We must also notice that the said decision has been followed in New India Assurance Co. Ltd. v. Kalpana (Smt.) and Ors. [(2007) 3 SCC 538] . 20. In Bijoy Kumar Dugar v. Bidya Dhar Dutta & Ors. [(2006) 3 SCC 242] , this Court, in a case where the salary of the deceased was found to be Rs.3600/- after deduction and wherein multiplier of 12 was applied where the age of the parents of the deceased was between 45 and 50 years, held that no further enhancement was warranted. 21. In U.P. State Road Transport Corporation v. Krishna Bala & Ors. [(2006) 6 SCC 249] , it was held: The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants, whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed over the period for which the dependency is expected to last. 22. Therein a multiplier of 13 was adopted in a case where the age of the deceased was around 36. 23. Almost to the same effect is the decision of this Court in The Managing Director, TNSTC v. Sripriya & Ors. [2007 (4) SCALE 222 ]. In that case, a multiplier of 12 was applied in a case where the age of the deceased was 37 years. 24. Even certain allowances payable to the deceased could have been taken into consideration in the changing social scenario. In National Insurance Company Ltd. v. Indira Srivastava & Ors. [2007 (14) SCALE 461 ], it is useful to notice, this Court observed: 17. The amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were for his benefit. We may, however, hasten to add that from the said amount of income, the statutory amount of tax payable thereupon must be deducted. Noticing the dictionary meaning of income, it was held: 19. If the dictionary meaning of the word income is taken to its logical conclusion, it should include those benefits, either in terms of money or otherwise, which are taken into consideration for the purpose of payment of income-tax or profession tax although some elements thereof may or may not be taxable or would have been otherwise taxable but for the exemption conferred thereupon under the statute. 25. We, therefore, are of the opinion that what would have been the income of the deceased on the date of retirement was not a relevant factor in the light of peculiar facts of this case and, thus, the approach of the Tribunal and the High Court must be held to be incorrect. It is impermissible in law to take into consideration the effect of revision in scale of pay w.e.f. 1.1.1997 or what would have been the scale of pay in 2002. 26. The loss of dependency, in our opinion, should be calculated on the basis as if the basic pay of the deceased been Rs. 3295/- X 2 = Rs. 6,590/-, thereto should be added 18.5% dearness allowance which comes to Rs.1219/-, child education allowance for two children @ Rs.240/- X 2 = Rs.480 and child bus fair Rs.160 X 2 = Rs.320/- should have been added which comes to Rs.8,609/-. 27. From the aforementioned figure 1/3rd should be deducted. After deduction, the amount of income comes to Rs.5,738/- per month [Rs.8609/- - Rs.2871/-] and the amount of compensation should be determined by adopting the multiplier of 13, which comes to Rs.8,95,128/- 28. In the present case, the High Court itself has applied the multiplier of 13. We are of the opinion that no interference therewith is warranted. We furthermore do not intend to interfere with the rate of interest in the facts and circumstance of the case. 29.
### Response:
1
### Explanation:
We, therefore, are of the opinion that what would have been the income of the deceased on the date of retirement was not a relevant factor in the light of peculiar facts of this case and, thus, the approach of the Tribunal and the High Court must be held to be incorrect. It is impermissible in law to take into consideration the effect of revision in scale of pay w.e.f. 1.1.1997 or what would have been the scale of pay in 200226. The loss of dependency, in our opinion, should be calculated on the basis as if the basic pay of the deceased been Rs. 3295/- X 2 = Rs. 6,590/-, thereto should be added 18.5% dearness allowance which comes to Rs.1219/-, child education allowance for two children @ Rs.240/- X 2 = Rs.480 and child bus fair Rs.160 X 2 = Rs.320/- should have been added which comes to Rs.8,609/-27. From the aforementioned figure 1/3rd should be deducted. After deduction, the amount of income comes to Rs.5,738/- per month [Rs.8609/- - Rs.2871/-] and the amount of compensation should be determined by adopting the multiplier of 13, which comes to Rs.8,95,128/-28. In the present case, the High Court itself has applied the multiplier of 13. We are of the opinion that no interference therewith is warranted. We furthermore do not intend to interfere with the rate of interest in the facts and circumstance of the case.
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ARJUN S/O. RAMANNA @ RAMU Vs. IFFCO TOKIO GENERAL INSURANCE CO. LTD. & ANR
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driver. Therefore, it is a case of total disablement. He relied upon decisions of this Court in the cases of Pratap Narain Singh Deo v. Srinivas Sabata & Anr (1976) 1 SCC 289 . and K. Janardhan v. United India Insurance Co. Ltd (2008) 8 SCC 518 . 5. The learned counsel appearing for the first respondent invited our attention to the deposition of Dr. Laxmi Narayanana, who opined that the appellant suffered from permanent partial disability to the extent of 40%. He submitted that the Commissioner committed an error by proceeding on the footing that the appellant suffered from total disablement. He submitted that Section 4 of the said Act is mandatory. Therefore, the case of the appellant was of partial permanent disability. He urged that the first respondent will not be liable to pay compensation as the appellant did not possess a driving licence to drive a commercial goods carrier. He would, therefore, submit that no interference is called for with the judgment of the High Court. 6. The impugned judgment of the High Court proceeds on the accepted position that the appellant was employed as a driver to drive an auto-rickshaw used for carrying goods. The only ground on which the High Court reduced the compensation was that the appellant did not suffer from total disablement. Therefore, the Commissioner for workmens compensation committed an error by taking the disability at 100%. The first respondent cannot dispute its liability to pay compensation as the High Court has held the said respondent liable. The first respondent has not challenged the impugned Judgment. Therefore, the argument that the appellant did not possess a driving licence to drive a commercial goods vehicle is not open to the first respondent. 7. The only question which is required to be decided is whether the appellant suffered from total disablement, which is defined in clause (l) of sub-section (1) of section (2) of the said Act. On the issue of disability, what is relevant is the statement of Dr. Laxmi Narayanana, who examined the appellant for making an assessment of disability. 3) When presented he had a crush injury of right forearm with fractured ends of radius and ulna and triple nerve injury of the right forearm and Guillotine Amputation with stump reconstruction was done on 19-02- 2009 and was further managed by me since then with follow up treatment over a period of time. 4) On examination today all the external injuries were found healed up and the amputated stump is also healed up with blunting of the stump due to which there is functional loss of 100% of right upper limb wherein he cannot perform any of the activities with the upper limb on right side. Further I state that he cannot perform the job of driver for ever due to amputation of his right upper limb. 5) In view of this on verifying the records and on examination I am of the opinion that P.P.D. is of 40% with subsequent loss in earnings. (Underline supplied) 8. What the doctor has stated in paragraph 5 is his opinion as regards the percentage of disability. But in paragraph 4, the doctor has clearly stated that the appellant has suffered from functional loss of 100% of the right upper limb and cannot perform the job of a driver forever due to amputation of his right upper limb. 9. In the case of Pratap Narain Singh Deo (supra) in para 5, this Court held as under: 5. The expression total disablement has been defined in Section 2(1)(e) of the Act as follows: (1) total disablement means such disablement whether of a temporary or permanent nature, as incapacitates workman for all work which he was capable of performing at the time of the accident resulting in such disablement. It has not been disputed before us that the injury was of such a nature as to cause permanent disablement to the respondent, and the question for consideration is whether the disablement incapacitated the respondent for all work which he was capable of performing at the time of the accident. The Commissioner has examined the question and recorded his finding as follows: The injured workman in this case is carpenter by profession .... By loss of the left hand above the elbow, he has evidently been rendered unfit for the work of carpenter as the work of carpentry cannot be done by one hand only. This is obviously a reasonable and correct finding. Counsel for the appellant has not been able to assail it on any ground and it does not require to be corrected in this appeal. There is also no justification for the other argument which has been advanced with reference to Item 3 of Part II of Schedule 1, because it was not the appellants case before the Commissioner that amputation of the arm was from 8 from tip of acromion to less than 4 below the tip of olecranon. A new case cannot therefore be allowed to be set up on facts which have not been admitted or established. 10. There is no dispute that the appellant suffered from disablement of permanent nature. The disablement has incapacitated him from doing the work which he was capable of doing. The said work was of driving a vehicle. Therefore, the learned Commissioner for Workmens Compensation was right in holding that the disability of the appellant will have to be treated as 100% disability. Hence, the case of the appellant will be covered by the definition of total disablement. 11. Therefore, the impugned judgment cannot be sustained and will have to be set aside. We are informed that the entire compensation amount as directed by the Commissioner was deposited by the first respondent in the High Court and the appellant has withdrawn the amount payable as per the impugned Judgment of the High Court. Therefore, the appellant will be entitled to withdraw the balance amount lying deposited in the High Court with interest, if any, accrued thereon.
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1[ds]6. The impugned judgment of the High Court proceeds on the accepted position that the appellant was employed as a driver to drive an auto-rickshaw used for carrying goods. The only ground on which the High Court reduced the compensation was that the appellant did not suffer from total disablement. Therefore, the Commissioner for workmens compensation committed an error by taking the disability at 100%. The first respondent cannot dispute its liability to pay compensation as the High Court has held the said respondent liable. The first respondent has not challenged the impugned Judgment. Therefore, the argument that the appellant did not possess a driving licence to drive a commercial goods vehicle is not open to the first respondent.8. What the doctor has stated in paragraph 5 is his opinion as regards the percentage of disability. But in paragraph 4, the doctor has clearly stated that the appellant has suffered from functional loss of 100% of the right upper limb and cannot perform the job of a driver forever due to amputation of his right upper limb.9. In the case of Pratap Narain Singh Deo (supra) in para 5, this Court held as under:5. The expression total disablement has been defined in Section 2(1)(e) of the Act as follows:(1) total disablement means such disablement whether of a temporary or permanent nature, as incapacitates workman for all work which he was capable of performing at the time of the accident resulting in such disablement.It has not been disputed before us that the injury was of such a nature as to cause permanent disablement to the respondent, and the question for consideration is whether the disablement incapacitated the respondent for all work which he was capable of performing at the time of the accident. The Commissioner has examined the question and recorded his finding as follows:The injured workman in this case is carpenter by profession .... By loss of the left hand above the elbow, he has evidently been rendered unfit for the work of carpenter as the work of carpentry cannot be done by one hand only.This is obviously a reasonable and correct finding. Counsel for the appellant has not been able to assail it on any ground and it does not require to be corrected in this appeal. There is also no justification for the other argument which has been advanced with reference to Item 3 of Part II of Schedule 1, because it was not the appellants case before the Commissioner that amputation of the arm was from 8 from tip of acromion to less than 4 below the tip of olecranon. A new case cannot therefore be allowed to be set up on facts which have not been admitted or established.10. There is no dispute that the appellant suffered from disablement of permanent nature. The disablement has incapacitated him from doing the work which he was capable of doing. The said work was of driving a vehicle. Therefore, the learned Commissioner for Workmens Compensation was right in holding that the disability of the appellant will have to be treated as 100% disability. Hence, the case of the appellant will be covered by the definition of total disablement.11. Therefore, the impugned judgment cannot be sustained and will have to be set aside. We are informed that the entire compensation amount as directed by the Commissioner was deposited by the first respondent in the High Court and the appellant has withdrawn the amount payable as per the impugned Judgment of the High Court. Therefore, the appellant will be entitled to withdraw the balance amount lying deposited in the High Court with interest, if any, accrued thereon.
| 1 | 1,416 | 669 |
### 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:
driver. Therefore, it is a case of total disablement. He relied upon decisions of this Court in the cases of Pratap Narain Singh Deo v. Srinivas Sabata & Anr (1976) 1 SCC 289 . and K. Janardhan v. United India Insurance Co. Ltd (2008) 8 SCC 518 . 5. The learned counsel appearing for the first respondent invited our attention to the deposition of Dr. Laxmi Narayanana, who opined that the appellant suffered from permanent partial disability to the extent of 40%. He submitted that the Commissioner committed an error by proceeding on the footing that the appellant suffered from total disablement. He submitted that Section 4 of the said Act is mandatory. Therefore, the case of the appellant was of partial permanent disability. He urged that the first respondent will not be liable to pay compensation as the appellant did not possess a driving licence to drive a commercial goods carrier. He would, therefore, submit that no interference is called for with the judgment of the High Court. 6. The impugned judgment of the High Court proceeds on the accepted position that the appellant was employed as a driver to drive an auto-rickshaw used for carrying goods. The only ground on which the High Court reduced the compensation was that the appellant did not suffer from total disablement. Therefore, the Commissioner for workmens compensation committed an error by taking the disability at 100%. The first respondent cannot dispute its liability to pay compensation as the High Court has held the said respondent liable. The first respondent has not challenged the impugned Judgment. Therefore, the argument that the appellant did not possess a driving licence to drive a commercial goods vehicle is not open to the first respondent. 7. The only question which is required to be decided is whether the appellant suffered from total disablement, which is defined in clause (l) of sub-section (1) of section (2) of the said Act. On the issue of disability, what is relevant is the statement of Dr. Laxmi Narayanana, who examined the appellant for making an assessment of disability. 3) When presented he had a crush injury of right forearm with fractured ends of radius and ulna and triple nerve injury of the right forearm and Guillotine Amputation with stump reconstruction was done on 19-02- 2009 and was further managed by me since then with follow up treatment over a period of time. 4) On examination today all the external injuries were found healed up and the amputated stump is also healed up with blunting of the stump due to which there is functional loss of 100% of right upper limb wherein he cannot perform any of the activities with the upper limb on right side. Further I state that he cannot perform the job of driver for ever due to amputation of his right upper limb. 5) In view of this on verifying the records and on examination I am of the opinion that P.P.D. is of 40% with subsequent loss in earnings. (Underline supplied) 8. What the doctor has stated in paragraph 5 is his opinion as regards the percentage of disability. But in paragraph 4, the doctor has clearly stated that the appellant has suffered from functional loss of 100% of the right upper limb and cannot perform the job of a driver forever due to amputation of his right upper limb. 9. In the case of Pratap Narain Singh Deo (supra) in para 5, this Court held as under: 5. The expression total disablement has been defined in Section 2(1)(e) of the Act as follows: (1) total disablement means such disablement whether of a temporary or permanent nature, as incapacitates workman for all work which he was capable of performing at the time of the accident resulting in such disablement. It has not been disputed before us that the injury was of such a nature as to cause permanent disablement to the respondent, and the question for consideration is whether the disablement incapacitated the respondent for all work which he was capable of performing at the time of the accident. The Commissioner has examined the question and recorded his finding as follows: The injured workman in this case is carpenter by profession .... By loss of the left hand above the elbow, he has evidently been rendered unfit for the work of carpenter as the work of carpentry cannot be done by one hand only. This is obviously a reasonable and correct finding. Counsel for the appellant has not been able to assail it on any ground and it does not require to be corrected in this appeal. There is also no justification for the other argument which has been advanced with reference to Item 3 of Part II of Schedule 1, because it was not the appellants case before the Commissioner that amputation of the arm was from 8 from tip of acromion to less than 4 below the tip of olecranon. A new case cannot therefore be allowed to be set up on facts which have not been admitted or established. 10. There is no dispute that the appellant suffered from disablement of permanent nature. The disablement has incapacitated him from doing the work which he was capable of doing. The said work was of driving a vehicle. Therefore, the learned Commissioner for Workmens Compensation was right in holding that the disability of the appellant will have to be treated as 100% disability. Hence, the case of the appellant will be covered by the definition of total disablement. 11. Therefore, the impugned judgment cannot be sustained and will have to be set aside. We are informed that the entire compensation amount as directed by the Commissioner was deposited by the first respondent in the High Court and the appellant has withdrawn the amount payable as per the impugned Judgment of the High Court. Therefore, the appellant will be entitled to withdraw the balance amount lying deposited in the High Court with interest, if any, accrued thereon.
### Response:
1
### Explanation:
6. The impugned judgment of the High Court proceeds on the accepted position that the appellant was employed as a driver to drive an auto-rickshaw used for carrying goods. The only ground on which the High Court reduced the compensation was that the appellant did not suffer from total disablement. Therefore, the Commissioner for workmens compensation committed an error by taking the disability at 100%. The first respondent cannot dispute its liability to pay compensation as the High Court has held the said respondent liable. The first respondent has not challenged the impugned Judgment. Therefore, the argument that the appellant did not possess a driving licence to drive a commercial goods vehicle is not open to the first respondent.8. What the doctor has stated in paragraph 5 is his opinion as regards the percentage of disability. But in paragraph 4, the doctor has clearly stated that the appellant has suffered from functional loss of 100% of the right upper limb and cannot perform the job of a driver forever due to amputation of his right upper limb.9. In the case of Pratap Narain Singh Deo (supra) in para 5, this Court held as under:5. The expression total disablement has been defined in Section 2(1)(e) of the Act as follows:(1) total disablement means such disablement whether of a temporary or permanent nature, as incapacitates workman for all work which he was capable of performing at the time of the accident resulting in such disablement.It has not been disputed before us that the injury was of such a nature as to cause permanent disablement to the respondent, and the question for consideration is whether the disablement incapacitated the respondent for all work which he was capable of performing at the time of the accident. The Commissioner has examined the question and recorded his finding as follows:The injured workman in this case is carpenter by profession .... By loss of the left hand above the elbow, he has evidently been rendered unfit for the work of carpenter as the work of carpentry cannot be done by one hand only.This is obviously a reasonable and correct finding. Counsel for the appellant has not been able to assail it on any ground and it does not require to be corrected in this appeal. There is also no justification for the other argument which has been advanced with reference to Item 3 of Part II of Schedule 1, because it was not the appellants case before the Commissioner that amputation of the arm was from 8 from tip of acromion to less than 4 below the tip of olecranon. A new case cannot therefore be allowed to be set up on facts which have not been admitted or established.10. There is no dispute that the appellant suffered from disablement of permanent nature. The disablement has incapacitated him from doing the work which he was capable of doing. The said work was of driving a vehicle. Therefore, the learned Commissioner for Workmens Compensation was right in holding that the disability of the appellant will have to be treated as 100% disability. Hence, the case of the appellant will be covered by the definition of total disablement.11. Therefore, the impugned judgment cannot be sustained and will have to be set aside. We are informed that the entire compensation amount as directed by the Commissioner was deposited by the first respondent in the High Court and the appellant has withdrawn the amount payable as per the impugned Judgment of the High Court. Therefore, the appellant will be entitled to withdraw the balance amount lying deposited in the High Court with interest, if any, accrued thereon.
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Government Of Maharashtra Vs. M/S. Deokar'S Distillery
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Act while obtaining the licence, they cannot wriggle out of the contractual liability voluntarily incurred by them.33. The order of the High Court is bad in law. The High Court, in our view, has erred in not appreciating the impugned demand notice was also in the nature of demanding balance of the price of the exclusive privilege which would become final only on issue of the Notification, order under Article 309, the bulk of which have already been recovered in advance, which privilege exclusively vests with the Government considering effect of provisions especially Section 49 and Section 143(2)(u) of the Prohibition Act. In our opinion, the establishment charges demanded are in the nature of price for parting with the privilege to permit manufacture and sale of liquor, and the privilege exclusively vests with the Government.34. We have already noticed the observations made by this Court in the case of M/s. Anabeshahi Wine and Distilleries Pvt. Ltd. (supra). In this context, it is well-settled by catena of decisions of this Court that there is no fundamental right to trade in liquor and State can charge consideration for granting the privilege in respect of potable liquors for raising revenue as ruled in M/s. Anabeshahi Wines judgment (supra).35. As already noticed, the High Court has failed to appreciate that the judgment of this Court in Polychems case (supra) was required to be read with the decision f the Full Bench of the said Court in Mohan Meakins case (supra) in which the earlier decision in J.E. Bilimorlas case (supra) was overruled on entirely different reasons than those given in the judgment of the High Court in Gustad Mayur Iranis case (supra), the judgment dated 24.2.1994 in W.P. No. 2718/1991 and M/s. Vidarbha Wine Traders vs. State of Maharashtra and order dated 5.9.1994 of this Court rejecting S.L.P.(C) No....../1994 (CC 26531) filed by Vidarbha Wine Traders & fifteen other licensees.36. Inspite of the above position including different reasons given in the Full Bench judgment than those in Gustad Mayur Iranis case (supra) and in the rejection of the special leave petition filed by Vidarbha Wine Traders, learned counsel for the respondents is unable to give any reasons for establishing that the Full Bench decision in the Mohan Meakins case (supra) was not correct and the High Court has also not given any reasons in the impugned judgment for disagreeing with the reasons given in the Full Bench judgment of the Mohan Meakins case (supra).37. We have perused the judgment in Polychems case (supra) which was delivered on the basis of a concession and incorrect information submitted by the learned advocate appearing for the State of Maharashtra. The above facts and the legal position that the J.E. Bilimoria decision was overruled long back in the Full Bench judgment in the case of Mohan Meakin (supra) and which Full Bench judgment was already confirmed by this Court by order dated 8.9.1994 rejecting the Special Leave Petition No.... /1994 (CC 26531) filed by Vidarbha Wine Traders and 15 other licensees were not placed for consideration of this Court in the Polychems case by the State of Maharashtra as would be seen from the following observation in Polychems case, inter alia, that "It is common ground that these supervision charges are collected in advance at the beginning of each quarter.... We presume that this Division Bench judgment was not brought to the notice of the latter Division Bench, otherwise they would not have taken diametrically opposite view without referring the issue to a larger Bench. We further notice that the judgment in J.E. Bilimorias case was not challenged by the Revenue as per the information passed on by Mr. Nargolkar, learned counsel for the respondents."38. It appears that the learned counsel appearing for the State of Maharashtra had not sought any instruction in the Polychems case (supra) before making any statement in respect of J.E. Bilimoria judgment (supra), when it was already overruled long back in the judgment of the Mohan Meakins case (supra). Therefore, the correct facts and the legal position, as submitted above, could not be placed for consideration of this Court in the Polychem matter. We are, therefore, of the opinion that the judgment of this Court in Polychems case was delivered on the basis of the concession by the learned Government advocate when he conceded that supervision charges are collected only in advance, when under the residuary powers under Rule 17(43) of the Rules of 1966 and Rule 6(36) of the Rules of 1973, additional amounts were or could be demanded, as also di9rectly under Section 58A and Section 114 of the Prohibition Act. In our opinion, the High court has erred in not appreciating the submission of the appellants that the judgment in the case of Polychem appears to have been delivered on the basis of a concession/incorrect information and its ratio ought to be applied to the facts placed for consideration and the issues considered and decided.39. This apart, the High Court has also not right in rejecting the writ petition of the respondents at the threshold. The High Court has failed to notice another important factor that the statutory provision under Article 309, namely, the Notification dated 10.12.1998 and the consequential administrative instructions/orders issued for carrying out the executive function under Section 58A of the Prohibition Act and Article 162 namely, the circular letter dated 30.7. 1999 had not been challenged by the respondents herein and, therefore, they were not entitled to challenge the demand notice which was merely a consequential communication. The High Court, therefore, is not right in quashing the demand notice issued by appellant No. 4, namely, the Sub-Inspector of State Excise, in charge of the manufactory of the respondent, without examining the validity of or quashing the Rules of 1988 and the consequential circular letter dated 30.7.1999 issued by appellant No.2, namely, the Commissioner, since the demand notice was merely a consequential communication issued in furtherance of the rules of 1998 and the circular letter dated 30.7.1999.
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1[ds]30. In the case on hand, the licensees gave an undertaking at the time of obtaining grant or renewal of the license in the application form itself, both under the Rules of 1966 and the Rules of 1973, that they would abide by all orders made under the Prohibition Act and the Rules. Under Rule 17(43) of the Rules of 1966 and under Rule 6(36) of the Rules of 1973, there are residuary powers of making a demand in special circumstances not foreseen in Rule 17(12) of the Rules of 1966 or Rule 6(12) of the Rules of 1973. It is seen from Rule 17(43) of the Rules of 1966 that the licensee shall abide by all the Rules. Regulations and orders made from time to time under the Act. A similar provision also exists under Rule 6(36) of the Rules of 1973. The object of Section 58A of the Prohibition Act the intention of the Legislature, in our opinion, could not be anything other than that the entire cost incurred by the Government on account ofpaid to the Government employees posted for supervision should be paid by the licensee and that this cost should not be met from the Government exchequer.31. We have already extracted the relevant undertaking that the respondents had given in the application in Form P.L.A. prescribed under the Rules of 1966 and application in Form C.L.A. prescribed under Rules of 1973. Apart from the undertaking under Condition No. 17 of the licence in Form C.L.A. for grant or renewal of licence that the orders made from time to time under the Act shall be complied with.43 of Rule 17 of the Rules of 1966 and36 of Rule 6 of the Rules of 1973 also prescribed that the licensee shall abide by the orders made from to time under the Prohibition Act and these are the provisions which give residuary powers to the petitioners, inter alia, direct to pay the supervision charges.The legal licensee does not have a fundamental right to deal in liquor under Entry 8, List II in the Seventh Schedule to the Constitution of India and thereby under Sections 49 and 143(2)(u) of the Prohibition Act, the State has the exclusive right/privilege in respect of potable liquor and the State, in our opinion, can charge any reasonable expenses or even consideration for permitting such activity by grant of licence and that respondents ought to comply with all reasonable orders, as undertaken by them while obtaining the licence. This factor, the High court, has not appreciated. Once the liquor licensee has undertaken to abide by all reasonable orders under the Prohibition Act while obtaining the licence, they cannot wriggle out of the contractual liability voluntarily incurred by them.33. The order of the High Court is bad in law. The High Court, in our view, has erred in not appreciating the impugned demand notice was also in the nature of demanding balance of the price of the exclusive privilege which would become final only on issue of the Notification, order under Article 309, the bulk of which have already been recovered in advance, which privilege exclusively vests with the Government considering effect of provisions especially Section 49 and Section 143(2)(u) of the Prohibition Act. In our opinion, the establishment charges demanded are in the nature of price for parting with the privilege to permit manufacture and sale of liquor, and the privilege exclusively vests with the Government.34. We have already noticed the observations made by this Court in the case of M/s. Anabeshahi Wine and Distilleries Pvt. Ltd. (supra). In this context, it isby catena of decisions of this Court that there is no fundamental right to trade in liquor and State can charge consideration for granting the privilege in respect of potable liquors for raising revenue as ruled in M/s. Anabeshahi Wines judgment (supra).35. As already noticed, the High Court has failed to appreciate that the judgment of this Court in Polychems case (supra) was required to be read with the decision f the Full Bench of the said Court in Mohan Meakins case (supra) in which the earlier decision in J.E. Bilimorlas case (supra) was overruled on entirely different reasons than those given in the judgment of the High Court in Gustad Mayur Iranis case (supra), the judgment dated 24.2.1994 in W.P. No. 2718/1991 and M/s. Vidarbha Wine Traders vs. State of Maharashtra and order dated 5.9.1994 of this Court rejecting S.L.P.(C) No....../1994 (CC 26531) filed by Vidarbha Wine Traders & fifteen other licensees.36. Inspite of the above position including different reasons given in the Full Bench judgment than those in Gustad Mayur Iranis case (supra) and in the rejection of the special leave petition filed by Vidarbha Wine Traders, learned counsel for the respondents is unable to give any reasons for establishing that the Full Bench decision in the Mohan Meakins case (supra) was not correct and the High Court has also not given any reasons in the impugned judgment for disagreeing with the reasons given in the Full Bench judgment of the Mohan Meakins case (supra).37. We have perused the judgment in Polychems case (supra) which was delivered on the basis of a concession and incorrect information submitted by the learned advocate appearing for the State of Maharashtra. The above facts and the legal position that the J.E. Bilimoria decision was overruled long back in the Full Bench judgment in the case of Mohan Meakin (supra) and which Full Bench judgment was already confirmed by this Court by order dated 8.9.1994 rejecting the Special Leave Petition No.... /1994 (CC 26531) filed by Vidarbha Wine Traders and 15 other licensees were not placed for consideration of this Court in the Polychems case by the State of Maharashtra as would be seen from the following observation in Polychems case, inter alia, that "It is common ground that these supervision charges are collected in advance at the beginning of each quarter.... We presume that this Division Bench judgment was not brought to the notice of the latter Division Bench, otherwise they would not have taken diametrically opposite view without referring the issue to a larger Bench. We further notice that the judgment in J.E. Bilimorias case was not challenged by the Revenue as per the information passed on by Mr. Nargolkar, learned counsel for the respondents."38. It appears that the learned counsel appearing for the State of Maharashtra had not sought any instruction in the Polychems case (supra) before making any statement in respect of J.E. Bilimoria judgment (supra), when it was already overruled long back in the judgment of the Mohan Meakins case (supra). Therefore, the correct facts and the legal position, as submitted above, could not be placed for consideration of this Court in the Polychem matter. We are, therefore, of the opinion that the judgment of this Court in Polychems case was delivered on the basis of the concession by the learned Government advocate when he conceded that supervision charges are collected only in advance, when under the residuary powers under Rule 17(43) of the Rules of 1966 and Rule 6(36) of the Rules of 1973, additional amounts were or could be demanded, as also di9rectly under Section 58A and Section 114 of the Prohibition Act. In our opinion, the High court has erred in not appreciating the submission of the appellants that the judgment in the case of Polychem appears to have been delivered on the basis of a concession/incorrect information and its ratio ought to be applied to the facts placed for consideration and the issues considered and decided.39. This apart, the High Court has also not right in rejecting the writ petition of the respondents at the threshold. The High Court has failed to notice another important factor that the statutory provision under Article 309, namely, the Notification dated 10.12.1998 and the consequential administrative instructions/orders issued for carrying out the executive function under Section 58A of the Prohibition Act and Article 162 namely, the circular letter dated 30.7. 1999 had not been challenged by the respondents herein and, therefore, they were not entitled to challenge the demand notice which was merely a consequential communication. The High Court, therefore, is not right in quashing the demand notice issued by appellant No. 4, namely, theof State Excise, in charge of the manufactory of the respondent, without examining the validity of or quashing the Rules of 1988 and the consequential circular letter dated 30.7.1999 issued by appellant No.2, namely, the Commissioner, since the demand notice was merely a consequential communication issued in furtherance of the rules of 1998 and the circular letter dated 30.7.1999.
| 1 | 11,978 | 1,619 |
### 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:
Act while obtaining the licence, they cannot wriggle out of the contractual liability voluntarily incurred by them.33. The order of the High Court is bad in law. The High Court, in our view, has erred in not appreciating the impugned demand notice was also in the nature of demanding balance of the price of the exclusive privilege which would become final only on issue of the Notification, order under Article 309, the bulk of which have already been recovered in advance, which privilege exclusively vests with the Government considering effect of provisions especially Section 49 and Section 143(2)(u) of the Prohibition Act. In our opinion, the establishment charges demanded are in the nature of price for parting with the privilege to permit manufacture and sale of liquor, and the privilege exclusively vests with the Government.34. We have already noticed the observations made by this Court in the case of M/s. Anabeshahi Wine and Distilleries Pvt. Ltd. (supra). In this context, it is well-settled by catena of decisions of this Court that there is no fundamental right to trade in liquor and State can charge consideration for granting the privilege in respect of potable liquors for raising revenue as ruled in M/s. Anabeshahi Wines judgment (supra).35. As already noticed, the High Court has failed to appreciate that the judgment of this Court in Polychems case (supra) was required to be read with the decision f the Full Bench of the said Court in Mohan Meakins case (supra) in which the earlier decision in J.E. Bilimorlas case (supra) was overruled on entirely different reasons than those given in the judgment of the High Court in Gustad Mayur Iranis case (supra), the judgment dated 24.2.1994 in W.P. No. 2718/1991 and M/s. Vidarbha Wine Traders vs. State of Maharashtra and order dated 5.9.1994 of this Court rejecting S.L.P.(C) No....../1994 (CC 26531) filed by Vidarbha Wine Traders & fifteen other licensees.36. Inspite of the above position including different reasons given in the Full Bench judgment than those in Gustad Mayur Iranis case (supra) and in the rejection of the special leave petition filed by Vidarbha Wine Traders, learned counsel for the respondents is unable to give any reasons for establishing that the Full Bench decision in the Mohan Meakins case (supra) was not correct and the High Court has also not given any reasons in the impugned judgment for disagreeing with the reasons given in the Full Bench judgment of the Mohan Meakins case (supra).37. We have perused the judgment in Polychems case (supra) which was delivered on the basis of a concession and incorrect information submitted by the learned advocate appearing for the State of Maharashtra. The above facts and the legal position that the J.E. Bilimoria decision was overruled long back in the Full Bench judgment in the case of Mohan Meakin (supra) and which Full Bench judgment was already confirmed by this Court by order dated 8.9.1994 rejecting the Special Leave Petition No.... /1994 (CC 26531) filed by Vidarbha Wine Traders and 15 other licensees were not placed for consideration of this Court in the Polychems case by the State of Maharashtra as would be seen from the following observation in Polychems case, inter alia, that "It is common ground that these supervision charges are collected in advance at the beginning of each quarter.... We presume that this Division Bench judgment was not brought to the notice of the latter Division Bench, otherwise they would not have taken diametrically opposite view without referring the issue to a larger Bench. We further notice that the judgment in J.E. Bilimorias case was not challenged by the Revenue as per the information passed on by Mr. Nargolkar, learned counsel for the respondents."38. It appears that the learned counsel appearing for the State of Maharashtra had not sought any instruction in the Polychems case (supra) before making any statement in respect of J.E. Bilimoria judgment (supra), when it was already overruled long back in the judgment of the Mohan Meakins case (supra). Therefore, the correct facts and the legal position, as submitted above, could not be placed for consideration of this Court in the Polychem matter. We are, therefore, of the opinion that the judgment of this Court in Polychems case was delivered on the basis of the concession by the learned Government advocate when he conceded that supervision charges are collected only in advance, when under the residuary powers under Rule 17(43) of the Rules of 1966 and Rule 6(36) of the Rules of 1973, additional amounts were or could be demanded, as also di9rectly under Section 58A and Section 114 of the Prohibition Act. In our opinion, the High court has erred in not appreciating the submission of the appellants that the judgment in the case of Polychem appears to have been delivered on the basis of a concession/incorrect information and its ratio ought to be applied to the facts placed for consideration and the issues considered and decided.39. This apart, the High Court has also not right in rejecting the writ petition of the respondents at the threshold. The High Court has failed to notice another important factor that the statutory provision under Article 309, namely, the Notification dated 10.12.1998 and the consequential administrative instructions/orders issued for carrying out the executive function under Section 58A of the Prohibition Act and Article 162 namely, the circular letter dated 30.7. 1999 had not been challenged by the respondents herein and, therefore, they were not entitled to challenge the demand notice which was merely a consequential communication. The High Court, therefore, is not right in quashing the demand notice issued by appellant No. 4, namely, the Sub-Inspector of State Excise, in charge of the manufactory of the respondent, without examining the validity of or quashing the Rules of 1988 and the consequential circular letter dated 30.7.1999 issued by appellant No.2, namely, the Commissioner, since the demand notice was merely a consequential communication issued in furtherance of the rules of 1998 and the circular letter dated 30.7.1999.
### Response:
1
### Explanation:
orders under the Prohibition Act while obtaining the licence, they cannot wriggle out of the contractual liability voluntarily incurred by them.33. The order of the High Court is bad in law. The High Court, in our view, has erred in not appreciating the impugned demand notice was also in the nature of demanding balance of the price of the exclusive privilege which would become final only on issue of the Notification, order under Article 309, the bulk of which have already been recovered in advance, which privilege exclusively vests with the Government considering effect of provisions especially Section 49 and Section 143(2)(u) of the Prohibition Act. In our opinion, the establishment charges demanded are in the nature of price for parting with the privilege to permit manufacture and sale of liquor, and the privilege exclusively vests with the Government.34. We have already noticed the observations made by this Court in the case of M/s. Anabeshahi Wine and Distilleries Pvt. Ltd. (supra). In this context, it isby catena of decisions of this Court that there is no fundamental right to trade in liquor and State can charge consideration for granting the privilege in respect of potable liquors for raising revenue as ruled in M/s. Anabeshahi Wines judgment (supra).35. As already noticed, the High Court has failed to appreciate that the judgment of this Court in Polychems case (supra) was required to be read with the decision f the Full Bench of the said Court in Mohan Meakins case (supra) in which the earlier decision in J.E. Bilimorlas case (supra) was overruled on entirely different reasons than those given in the judgment of the High Court in Gustad Mayur Iranis case (supra), the judgment dated 24.2.1994 in W.P. No. 2718/1991 and M/s. Vidarbha Wine Traders vs. State of Maharashtra and order dated 5.9.1994 of this Court rejecting S.L.P.(C) No....../1994 (CC 26531) filed by Vidarbha Wine Traders & fifteen other licensees.36. Inspite of the above position including different reasons given in the Full Bench judgment than those in Gustad Mayur Iranis case (supra) and in the rejection of the special leave petition filed by Vidarbha Wine Traders, learned counsel for the respondents is unable to give any reasons for establishing that the Full Bench decision in the Mohan Meakins case (supra) was not correct and the High Court has also not given any reasons in the impugned judgment for disagreeing with the reasons given in the Full Bench judgment of the Mohan Meakins case (supra).37. We have perused the judgment in Polychems case (supra) which was delivered on the basis of a concession and incorrect information submitted by the learned advocate appearing for the State of Maharashtra. The above facts and the legal position that the J.E. Bilimoria decision was overruled long back in the Full Bench judgment in the case of Mohan Meakin (supra) and which Full Bench judgment was already confirmed by this Court by order dated 8.9.1994 rejecting the Special Leave Petition No.... /1994 (CC 26531) filed by Vidarbha Wine Traders and 15 other licensees were not placed for consideration of this Court in the Polychems case by the State of Maharashtra as would be seen from the following observation in Polychems case, inter alia, that "It is common ground that these supervision charges are collected in advance at the beginning of each quarter.... We presume that this Division Bench judgment was not brought to the notice of the latter Division Bench, otherwise they would not have taken diametrically opposite view without referring the issue to a larger Bench. We further notice that the judgment in J.E. Bilimorias case was not challenged by the Revenue as per the information passed on by Mr. Nargolkar, learned counsel for the respondents."38. It appears that the learned counsel appearing for the State of Maharashtra had not sought any instruction in the Polychems case (supra) before making any statement in respect of J.E. Bilimoria judgment (supra), when it was already overruled long back in the judgment of the Mohan Meakins case (supra). Therefore, the correct facts and the legal position, as submitted above, could not be placed for consideration of this Court in the Polychem matter. We are, therefore, of the opinion that the judgment of this Court in Polychems case was delivered on the basis of the concession by the learned Government advocate when he conceded that supervision charges are collected only in advance, when under the residuary powers under Rule 17(43) of the Rules of 1966 and Rule 6(36) of the Rules of 1973, additional amounts were or could be demanded, as also di9rectly under Section 58A and Section 114 of the Prohibition Act. In our opinion, the High court has erred in not appreciating the submission of the appellants that the judgment in the case of Polychem appears to have been delivered on the basis of a concession/incorrect information and its ratio ought to be applied to the facts placed for consideration and the issues considered and decided.39. This apart, the High Court has also not right in rejecting the writ petition of the respondents at the threshold. The High Court has failed to notice another important factor that the statutory provision under Article 309, namely, the Notification dated 10.12.1998 and the consequential administrative instructions/orders issued for carrying out the executive function under Section 58A of the Prohibition Act and Article 162 namely, the circular letter dated 30.7. 1999 had not been challenged by the respondents herein and, therefore, they were not entitled to challenge the demand notice which was merely a consequential communication. The High Court, therefore, is not right in quashing the demand notice issued by appellant No. 4, namely, theof State Excise, in charge of the manufactory of the respondent, without examining the validity of or quashing the Rules of 1988 and the consequential circular letter dated 30.7.1999 issued by appellant No.2, namely, the Commissioner, since the demand notice was merely a consequential communication issued in furtherance of the rules of 1998 and the circular letter dated 30.7.1999.
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G. Murugesan and Brothers Vs. Commissioner of Income Tax, Madras
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Beaumont, C. J., in Commr. of Income-tax v. Lakshmidas Devidas, at page 589 (1937) 5 ITR 584 (Bom.) and also in In re: Dwarkanath Harishchandra Pitale, 5 ITR 716 = (AIR 1938 Bom. 353 ) In re B. N. Elias, (1935) 3 ITR 408 (Cal.) Costello, J., put the test in more forceful language. He said: "It may well be that the intention of the Legislature was to hit combinations of individuals who were engaged together in some joint enterprise but did not in law constitute partnerships.....When we find,....that there is a combination of persons formed for the promotion of a joint enterprise...then I think no difficulty arises whatever in the way of saying that....these persons did constitute an association......".We think that the aforesaid decision correctly lays down the crucial test for determining what is an Association of Persons within the meaning of Section 3 of the Income-tax Act, and they have been accepted and followed in a number of later decisions of different High Courts to all of which it is unnecessary to call attention. It is, however, necessary to add some words of caution here. There is no formula of universal application as to what facts, how many of them and of what nature, are necessary to come to a conclusion that there is an association of persons within the meaning of section 3; it must depend on the particular facts and circumstances of each case as to whether the conclusion can be drawn or not."8. In the course of that judgment, this Court also observed:"With regard to the shares, dividends, and interest on deposits, there was no finding of any act of joint management. Indeed, the main item consists of the dividends and it is difficult to understand what act of management the widows performed in respect thereof which produced or helped to produce income."For forming an Association of Persons, the members of the association must join together for the purpose of producing an income. An Association of Persons can be formed only when two or more individuals voluntarily combine together for a certain purpose. Hence volition on the part of the member of the association is an essential ingredient. It is true that even a minor can join an Association of Persons if his lawful guardian gives his consent. In the case of receiving dividends from shares, where there is no question of any management, it is difficult to draw an inference that two or more shareholders functioned as an Association of Persons from the mere fact that they jointly own one or more shares, and jointly receive the dividends declared. Those circumstances do not by themselves go to show that they acted as an Association of Persons.9. But unfortunately for the assessees for the assessment years 1957-58 and 1958-59, they themselves had submitted their returns in the status of Association of Persons. Those returns were neither withdrawn nor did they file fresh returns as individuals. It was for the first time in the appeal, it was argued on their behalf that they should not have been assessed as Association of Persons. The question whether the assessees functioned as an Association of Persons during those years was best known to them. Their admission in that regard is an important piece of evidence. They have made no attempt to show that the said admission was made under erroneous impression of law or is otherwise vitiated. Hence for those years they were rightly assessed as an Association of Persons. But so far as the other assessment years are concerned, the same result does not follow. They themselves have specifically stated that they are no more functioning as Association of Persons. In the case of association of persons it is always open to its members to withdraw from the same. No one can be compelled to continue as a member of an association. For withdrawing from an association there is no particular form needed to be observed. As seen earlier, herein we are concerned only with the realisation of dividends. If the individual members of the association choose to realise their dividends as individuals, there is an end of the association. The assessees assertion that they have realised their dividends in their individual capacity remains unrebutted. There is nothing to disprove that claim. None of the facts proved can be said to be inconsistent with the claim made by them.10. For the reasons mentioned above, we are unable to agree with the High Court that during the assessment years 1959-60 to 1962-63, the assessees should be held as having functioned as an association of persons. Mr. Karkhanis in support of the contention of Revenue relied on the decision of the Bombay High Court in S. C. Cambatta v. Commr. of Income-tax, Bombay (14 ITR 748) = (AIR 1947 Bom. 264 ). Therein, the only question was whether when an action is taken by an Income-tax Officer under Section 23-A, should the dividend deemed to have been declared to the shareholders must be considered to have been taken by a husband and wife who were the joint holders of a share as an Association of Persons or by the husband alone who under the Articles of Association was to act on behalf of the joint holders. The contention of the Revenue was that the husband alone was the shareholder. On the other hand the contention of the assessee was that they were an Association of Persons and that contention was accepted by the Court. The ratio of that decision has no bearing on the point in issue in the present case. We are also not able to agree with Mr. Karkhanis that the decision of this Court in N. V. Shanmugham Co. v Commr. of Income Tax, Madras, (81 ITR 310) = (AIR 1970 SC 1707 ) lends any support for the contention of the Revenue. On the other hand, therein this Court relied upon the decision of this Court in (39 ITR 546) = (AIR 1960 SC 1172 ).
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0[ds]For forming an Association of Persons, the members of the association must join together for the purpose of producing an income. An Association of Persons can be formed only when two or more individuals voluntarily combine together for a certain purpose. Hence volition on the part of the member of the association is an essential ingredient. It is true that even a minor can join an Association of Persons if his lawful guardian gives his consent. In the case of receiving dividends from shares, where there is no question of any management, it is difficult to draw an inference that two or more shareholders functioned as an Association of Persons from the mere fact that they jointly own one or more shares, and jointly receive the dividends declared. Those circumstances do not by themselves go to show that they acted as an Association of Persons.9. But unfortunately for the assessees for the assessment years 1957-58 and 1958-59, they themselves had submitted their returns in the status of Association of Persons. Those returns were neither withdrawn nor did they file fresh returns as individuals. It was for the first time in the appeal, it was argued on their behalf that they should not have been assessed as Association of Persons. The question whether the assessees functioned as an Association of Persons during those years was best known to them. Their admission in that regard is an important piece of evidence. They have made no attempt to show that the said admission was made under erroneous impression of law or is otherwise vitiated. Hence for those years they were rightly assessed as an Association of Persons. But so far as the other assessment years are concerned, the same result does not follow. They themselves have specifically stated that they are no more functioning as Association of Persons. In the case of association of persons it is always open to its members to withdraw from the same. No one can be compelled to continue as a member of an association. For withdrawing from an association there is no particular form needed to be observed. As seen earlier, herein we are concerned only with the realisation of dividends. If the individual members of the association choose to realise their dividends as individuals, there is an end of the association. The assessees assertion that they have realised their dividends in their individual capacity remains unrebutted. There is nothing to disprove that claim. None of the facts proved can be said to be inconsistent with the claim made by them.10. For the reasons mentioned above, we are unable to agree with the High Court that during the assessment years 1959-60 to 1962-63, the assessees should be held as having functioned as an association of persons.
| 0 | 2,484 | 498 |
### 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:
Beaumont, C. J., in Commr. of Income-tax v. Lakshmidas Devidas, at page 589 (1937) 5 ITR 584 (Bom.) and also in In re: Dwarkanath Harishchandra Pitale, 5 ITR 716 = (AIR 1938 Bom. 353 ) In re B. N. Elias, (1935) 3 ITR 408 (Cal.) Costello, J., put the test in more forceful language. He said: "It may well be that the intention of the Legislature was to hit combinations of individuals who were engaged together in some joint enterprise but did not in law constitute partnerships.....When we find,....that there is a combination of persons formed for the promotion of a joint enterprise...then I think no difficulty arises whatever in the way of saying that....these persons did constitute an association......".We think that the aforesaid decision correctly lays down the crucial test for determining what is an Association of Persons within the meaning of Section 3 of the Income-tax Act, and they have been accepted and followed in a number of later decisions of different High Courts to all of which it is unnecessary to call attention. It is, however, necessary to add some words of caution here. There is no formula of universal application as to what facts, how many of them and of what nature, are necessary to come to a conclusion that there is an association of persons within the meaning of section 3; it must depend on the particular facts and circumstances of each case as to whether the conclusion can be drawn or not."8. In the course of that judgment, this Court also observed:"With regard to the shares, dividends, and interest on deposits, there was no finding of any act of joint management. Indeed, the main item consists of the dividends and it is difficult to understand what act of management the widows performed in respect thereof which produced or helped to produce income."For forming an Association of Persons, the members of the association must join together for the purpose of producing an income. An Association of Persons can be formed only when two or more individuals voluntarily combine together for a certain purpose. Hence volition on the part of the member of the association is an essential ingredient. It is true that even a minor can join an Association of Persons if his lawful guardian gives his consent. In the case of receiving dividends from shares, where there is no question of any management, it is difficult to draw an inference that two or more shareholders functioned as an Association of Persons from the mere fact that they jointly own one or more shares, and jointly receive the dividends declared. Those circumstances do not by themselves go to show that they acted as an Association of Persons.9. But unfortunately for the assessees for the assessment years 1957-58 and 1958-59, they themselves had submitted their returns in the status of Association of Persons. Those returns were neither withdrawn nor did they file fresh returns as individuals. It was for the first time in the appeal, it was argued on their behalf that they should not have been assessed as Association of Persons. The question whether the assessees functioned as an Association of Persons during those years was best known to them. Their admission in that regard is an important piece of evidence. They have made no attempt to show that the said admission was made under erroneous impression of law or is otherwise vitiated. Hence for those years they were rightly assessed as an Association of Persons. But so far as the other assessment years are concerned, the same result does not follow. They themselves have specifically stated that they are no more functioning as Association of Persons. In the case of association of persons it is always open to its members to withdraw from the same. No one can be compelled to continue as a member of an association. For withdrawing from an association there is no particular form needed to be observed. As seen earlier, herein we are concerned only with the realisation of dividends. If the individual members of the association choose to realise their dividends as individuals, there is an end of the association. The assessees assertion that they have realised their dividends in their individual capacity remains unrebutted. There is nothing to disprove that claim. None of the facts proved can be said to be inconsistent with the claim made by them.10. For the reasons mentioned above, we are unable to agree with the High Court that during the assessment years 1959-60 to 1962-63, the assessees should be held as having functioned as an association of persons. Mr. Karkhanis in support of the contention of Revenue relied on the decision of the Bombay High Court in S. C. Cambatta v. Commr. of Income-tax, Bombay (14 ITR 748) = (AIR 1947 Bom. 264 ). Therein, the only question was whether when an action is taken by an Income-tax Officer under Section 23-A, should the dividend deemed to have been declared to the shareholders must be considered to have been taken by a husband and wife who were the joint holders of a share as an Association of Persons or by the husband alone who under the Articles of Association was to act on behalf of the joint holders. The contention of the Revenue was that the husband alone was the shareholder. On the other hand the contention of the assessee was that they were an Association of Persons and that contention was accepted by the Court. The ratio of that decision has no bearing on the point in issue in the present case. We are also not able to agree with Mr. Karkhanis that the decision of this Court in N. V. Shanmugham Co. v Commr. of Income Tax, Madras, (81 ITR 310) = (AIR 1970 SC 1707 ) lends any support for the contention of the Revenue. On the other hand, therein this Court relied upon the decision of this Court in (39 ITR 546) = (AIR 1960 SC 1172 ).
### Response:
0
### Explanation:
For forming an Association of Persons, the members of the association must join together for the purpose of producing an income. An Association of Persons can be formed only when two or more individuals voluntarily combine together for a certain purpose. Hence volition on the part of the member of the association is an essential ingredient. It is true that even a minor can join an Association of Persons if his lawful guardian gives his consent. In the case of receiving dividends from shares, where there is no question of any management, it is difficult to draw an inference that two or more shareholders functioned as an Association of Persons from the mere fact that they jointly own one or more shares, and jointly receive the dividends declared. Those circumstances do not by themselves go to show that they acted as an Association of Persons.9. But unfortunately for the assessees for the assessment years 1957-58 and 1958-59, they themselves had submitted their returns in the status of Association of Persons. Those returns were neither withdrawn nor did they file fresh returns as individuals. It was for the first time in the appeal, it was argued on their behalf that they should not have been assessed as Association of Persons. The question whether the assessees functioned as an Association of Persons during those years was best known to them. Their admission in that regard is an important piece of evidence. They have made no attempt to show that the said admission was made under erroneous impression of law or is otherwise vitiated. Hence for those years they were rightly assessed as an Association of Persons. But so far as the other assessment years are concerned, the same result does not follow. They themselves have specifically stated that they are no more functioning as Association of Persons. In the case of association of persons it is always open to its members to withdraw from the same. No one can be compelled to continue as a member of an association. For withdrawing from an association there is no particular form needed to be observed. As seen earlier, herein we are concerned only with the realisation of dividends. If the individual members of the association choose to realise their dividends as individuals, there is an end of the association. The assessees assertion that they have realised their dividends in their individual capacity remains unrebutted. There is nothing to disprove that claim. None of the facts proved can be said to be inconsistent with the claim made by them.10. For the reasons mentioned above, we are unable to agree with the High Court that during the assessment years 1959-60 to 1962-63, the assessees should be held as having functioned as an association of persons.
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Vishwanath Shankar Beldar Vs. State of Maharashtra
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K.S. Hegde, J.1.This appeal was brought on the basis of the special leave granted by this Court on April 30, 1969; but the leave was limited to the question as to whether the High Court was justified in dismissing the appeal summarily.2. The appellant and three others were tried for various offences including an offence under Section 302, I.P.C. by the learned additional Sessions Judge at Jalgaon. The appellant was convicted under Section 302 as well as under Section 307, I.P.C. For the former offence, he was sentenced to suffer imprisonment for life and the latter, 7 years rigorous imprisonment. The two sentences were ordered to run concurrently. The appellant appealed to the High Court of Bombay against his convictions. His appeal was summarily dismissed.3. The question for out consideration is whether the High Court was justified on the facts of the case in summarily dismissing the appeal.4. The prosecution case is that the offence in question took place at a fair and in the presence of a large number of persons, but in support of the prosecution case only two occurrence witnesses were examined, namely, Ramchandra Punjabi and Dipa Lahu. Admittedly both these witnesses were companions of the deceased. The deceased as well as these two persons were engaged in selling illicit liquor at the time of the occurrence. The question why no independent witness was examined required consideration.5. It is seen from the judgment of the Trial Court that Ramchandra Punjabis name did not find a place in the two reports sent by the police officers. According to the prosecution, Ramchandra Punjabi was present when the appellant was caught and produced before the police Patel, but the police Patel in his report, Exh. 7, did not mention that fact. Some time later, the appellant was handed over to the head constable Kulkarani. Thereafter he sent his report, Exh. 47. Even in that report, the name of Ramchandra Punjabi does not find a place. These circumstances again required consideration. The Trial Court had not accepted the evidence of Ramchandra Punjabi in certain important aspects. The evidence given by him so far as it goes against accused Nos. 2-4 does not receive support from the statement given by him under Section 162, Cr. P.C. and hence the learned trial Judge rejected the same. This means the trial Judge did not accept him as a wholly truthful witness. In fact, he remarked that a portion of his evidence was clearly an improvement. Under these circumstances, it was necessary for the High Court to consider his evidence afresh.6. Now coming to Dipa Lahu, as mentioned earlier he is admittedly a close associate of the deceased. He was one of the persons who had sustained injuries at the time of the occurrence. A dying declaration from him had been recorded, Exh. 37. The facts stated by him in his dying declaration do not tally with the evidence given by him in the Court. There are material contradictions between the two versions. They were noticed by the Trial Court. Therefore, his evidence also required a fresh consideration at the hands of the High Court. It may also be mentioned at this stage that Dipa Lahu was a questioned by the I.O. immediately after the occurrence. His questioning took place after considerable delay. No explanation has been given for the same.
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0[ds]5. It is seen from the judgment of the Trial Court that Ramchandra Punjabis name did not find a place in the two reports sent by the police officers. According to the prosecution, Ramchandra Punjabi was present when the appellant was caught and produced before the police Patel, but the police Patel in his report, Exh. 7, did not mention that fact. Some time later, the appellant was handed over to the head constable Kulkarani. Thereafter he sent his report, Exh. 47. Even in that report, the name of Ramchandra Punjabi does not find a place. These circumstances again required consideration. The Trial Court had not accepted the evidence of Ramchandra Punjabi in certain important aspects. The evidence given by him so far as it goes against accused Nos.does not receive support from the statement given by him under Section 162, Cr. P.C. and hence the learned trial Judge rejected the same. This means the trial Judge did not accept him as a wholly truthful witness. In fact, he remarked that a portion of his evidence was clearly an improvement. Under these circumstances, it was necessary for the High Court to consider his evidence afresh.6. Now coming to Dipa Lahu, as mentioned earlier he is admittedly a close associate of the deceased. He was one of the persons who had sustained injuries at the time of the occurrence. A dying declaration from him had been recorded, Exh. 37. The facts stated by him in his dying declaration do not tally with the evidence given by him in the Court. There are material contradictions between the two versions. They were noticed by the Trial Court. Therefore, his evidence also required a fresh consideration at the hands of the High Court. It may also be mentioned at this stage that Dipa Lahu was a questioned by the I.O. immediately after the occurrence. His questioning took place after considerable delay. No explanation has been given for the same.
| 0 | 621 | 370 |
### 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:
K.S. Hegde, J.1.This appeal was brought on the basis of the special leave granted by this Court on April 30, 1969; but the leave was limited to the question as to whether the High Court was justified in dismissing the appeal summarily.2. The appellant and three others were tried for various offences including an offence under Section 302, I.P.C. by the learned additional Sessions Judge at Jalgaon. The appellant was convicted under Section 302 as well as under Section 307, I.P.C. For the former offence, he was sentenced to suffer imprisonment for life and the latter, 7 years rigorous imprisonment. The two sentences were ordered to run concurrently. The appellant appealed to the High Court of Bombay against his convictions. His appeal was summarily dismissed.3. The question for out consideration is whether the High Court was justified on the facts of the case in summarily dismissing the appeal.4. The prosecution case is that the offence in question took place at a fair and in the presence of a large number of persons, but in support of the prosecution case only two occurrence witnesses were examined, namely, Ramchandra Punjabi and Dipa Lahu. Admittedly both these witnesses were companions of the deceased. The deceased as well as these two persons were engaged in selling illicit liquor at the time of the occurrence. The question why no independent witness was examined required consideration.5. It is seen from the judgment of the Trial Court that Ramchandra Punjabis name did not find a place in the two reports sent by the police officers. According to the prosecution, Ramchandra Punjabi was present when the appellant was caught and produced before the police Patel, but the police Patel in his report, Exh. 7, did not mention that fact. Some time later, the appellant was handed over to the head constable Kulkarani. Thereafter he sent his report, Exh. 47. Even in that report, the name of Ramchandra Punjabi does not find a place. These circumstances again required consideration. The Trial Court had not accepted the evidence of Ramchandra Punjabi in certain important aspects. The evidence given by him so far as it goes against accused Nos. 2-4 does not receive support from the statement given by him under Section 162, Cr. P.C. and hence the learned trial Judge rejected the same. This means the trial Judge did not accept him as a wholly truthful witness. In fact, he remarked that a portion of his evidence was clearly an improvement. Under these circumstances, it was necessary for the High Court to consider his evidence afresh.6. Now coming to Dipa Lahu, as mentioned earlier he is admittedly a close associate of the deceased. He was one of the persons who had sustained injuries at the time of the occurrence. A dying declaration from him had been recorded, Exh. 37. The facts stated by him in his dying declaration do not tally with the evidence given by him in the Court. There are material contradictions between the two versions. They were noticed by the Trial Court. Therefore, his evidence also required a fresh consideration at the hands of the High Court. It may also be mentioned at this stage that Dipa Lahu was a questioned by the I.O. immediately after the occurrence. His questioning took place after considerable delay. No explanation has been given for the same.
### Response:
0
### Explanation:
5. It is seen from the judgment of the Trial Court that Ramchandra Punjabis name did not find a place in the two reports sent by the police officers. According to the prosecution, Ramchandra Punjabi was present when the appellant was caught and produced before the police Patel, but the police Patel in his report, Exh. 7, did not mention that fact. Some time later, the appellant was handed over to the head constable Kulkarani. Thereafter he sent his report, Exh. 47. Even in that report, the name of Ramchandra Punjabi does not find a place. These circumstances again required consideration. The Trial Court had not accepted the evidence of Ramchandra Punjabi in certain important aspects. The evidence given by him so far as it goes against accused Nos.does not receive support from the statement given by him under Section 162, Cr. P.C. and hence the learned trial Judge rejected the same. This means the trial Judge did not accept him as a wholly truthful witness. In fact, he remarked that a portion of his evidence was clearly an improvement. Under these circumstances, it was necessary for the High Court to consider his evidence afresh.6. Now coming to Dipa Lahu, as mentioned earlier he is admittedly a close associate of the deceased. He was one of the persons who had sustained injuries at the time of the occurrence. A dying declaration from him had been recorded, Exh. 37. The facts stated by him in his dying declaration do not tally with the evidence given by him in the Court. There are material contradictions between the two versions. They were noticed by the Trial Court. Therefore, his evidence also required a fresh consideration at the hands of the High Court. It may also be mentioned at this stage that Dipa Lahu was a questioned by the I.O. immediately after the occurrence. His questioning took place after considerable delay. No explanation has been given for the same.
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Gold Quest International Pvt. Ltd Vs. The State Of Tamilnadu
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Singh (supra) read as follows: ? 57. Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence. They are different and not interchangeable. Strictly speaking, the power of compounding of offences given to a court under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. In compounding of offences, power of a criminal court is circumscribed by the provisions contained in Section 320 and the court is guided solely and squarely thereby while, on the other hand, the formation of opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint is guided by the material on record as to whether the ends of justice would justify such exercise of power although the ultimate consequence may be acquittal or dismissal of indictment. Xx xx xx 59. B.S. Joshi [(2003) 4 SCC 675] , Nikhil Merchant [(2008) 9 SCC 677] , Manoj Sharma [(2008) 16 SCC 1 and Shiji [(2011) 10 SCC 705] do illustrate the principle that the High Court may quash criminal proceedings or FIR or complaint in exercise of its inherent power under Section 482 of the Code and Section 320 does not limit or affect the powers of the High Court under Section 482. Can it be said that by quashing criminal proceedings in B.S. Joshi, Nikhil Merchant, Manoj Sharma and Shiji this Court has compounded the non-compoundable offences indirectly ? We do not think so. There does exist the distinction between compounding of an offence under Section 320 and quashing of a criminal case by the High Court in exercise of inherent power under Section 482. The two powers are distinct and different although the ultimate consequence may be the same viz. acquittal of the accused or dismissal of indictment. Xx xx xx 61. The position that emerges from the above discussion can be summarized thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz.:(i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim?s family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, etc.; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and predominatingly civil flavour stand on a different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceedings.? 8. In view of the principle laid down by this Court in the aforesaid cases, we are of the view in the disputes which are substantially matrimonial in nature, or the civil property disputes with criminal facets, if the parties have entered into settlement, and it has become clear that there are no chances of conviction, there is no illegality in quashing the proceedings under Section 482 Cr.P.C. read with Article 226 of the Constitution. However, the same would not apply where the nature of offence is very serious like rape, murder, robbery, dacoity, cases under Prevention of Corruption Act, cases under Narcotic Drugs and Psychotropic Substances Act and other similar kind of offences in which punishment of life imprisonment or death can be awarded. After considering the facts and circumstances of the present case, we are of the view that learned Single Judge did not commit any error of law in quashing the FIR after not only the complainant and the appellant settled their money dispute but also the other alleged sufferers entered into an agreement with the appellant, and as such, they too settled their claims.
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1[ds]8. In view of the principle laid down by this Court in the aforesaid cases, we are of the view in the disputes which are substantially matrimonial in nature, or the civil property disputes with criminal facets, if the parties have entered into settlement, and it has become clear that there are no chances of conviction, there is no illegality in quashing the proceedings under Section 482 Cr.P.C. read with Article 226 of the Constitution. However, the same would not apply where the nature of offence is very serious like rape, murder, robbery, dacoity, cases under Prevention of Corruption Act, cases under Narcotic Drugs and Psychotropic Substances Act and other similar kind of offences in which punishment of life imprisonment or death can be awarded. After considering the facts and circumstances of the present case, we are of the view that learned Single Judge did not commit any error of law in quashing the FIR after not only the complainant and the appellant settled their money dispute but also the other alleged sufferers entered into an agreement with the appellant, and as such, they too settled their claims
| 1 | 2,612 | 210 |
### 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:
Singh (supra) read as follows: ? 57. Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence. They are different and not interchangeable. Strictly speaking, the power of compounding of offences given to a court under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. In compounding of offences, power of a criminal court is circumscribed by the provisions contained in Section 320 and the court is guided solely and squarely thereby while, on the other hand, the formation of opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint is guided by the material on record as to whether the ends of justice would justify such exercise of power although the ultimate consequence may be acquittal or dismissal of indictment. Xx xx xx 59. B.S. Joshi [(2003) 4 SCC 675] , Nikhil Merchant [(2008) 9 SCC 677] , Manoj Sharma [(2008) 16 SCC 1 and Shiji [(2011) 10 SCC 705] do illustrate the principle that the High Court may quash criminal proceedings or FIR or complaint in exercise of its inherent power under Section 482 of the Code and Section 320 does not limit or affect the powers of the High Court under Section 482. Can it be said that by quashing criminal proceedings in B.S. Joshi, Nikhil Merchant, Manoj Sharma and Shiji this Court has compounded the non-compoundable offences indirectly ? We do not think so. There does exist the distinction between compounding of an offence under Section 320 and quashing of a criminal case by the High Court in exercise of inherent power under Section 482. The two powers are distinct and different although the ultimate consequence may be the same viz. acquittal of the accused or dismissal of indictment. Xx xx xx 61. The position that emerges from the above discussion can be summarized thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz.:(i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim?s family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, etc.; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and predominatingly civil flavour stand on a different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceedings.? 8. In view of the principle laid down by this Court in the aforesaid cases, we are of the view in the disputes which are substantially matrimonial in nature, or the civil property disputes with criminal facets, if the parties have entered into settlement, and it has become clear that there are no chances of conviction, there is no illegality in quashing the proceedings under Section 482 Cr.P.C. read with Article 226 of the Constitution. However, the same would not apply where the nature of offence is very serious like rape, murder, robbery, dacoity, cases under Prevention of Corruption Act, cases under Narcotic Drugs and Psychotropic Substances Act and other similar kind of offences in which punishment of life imprisonment or death can be awarded. After considering the facts and circumstances of the present case, we are of the view that learned Single Judge did not commit any error of law in quashing the FIR after not only the complainant and the appellant settled their money dispute but also the other alleged sufferers entered into an agreement with the appellant, and as such, they too settled their claims.
### Response:
1
### Explanation:
8. In view of the principle laid down by this Court in the aforesaid cases, we are of the view in the disputes which are substantially matrimonial in nature, or the civil property disputes with criminal facets, if the parties have entered into settlement, and it has become clear that there are no chances of conviction, there is no illegality in quashing the proceedings under Section 482 Cr.P.C. read with Article 226 of the Constitution. However, the same would not apply where the nature of offence is very serious like rape, murder, robbery, dacoity, cases under Prevention of Corruption Act, cases under Narcotic Drugs and Psychotropic Substances Act and other similar kind of offences in which punishment of life imprisonment or death can be awarded. After considering the facts and circumstances of the present case, we are of the view that learned Single Judge did not commit any error of law in quashing the FIR after not only the complainant and the appellant settled their money dispute but also the other alleged sufferers entered into an agreement with the appellant, and as such, they too settled their claims
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The Commercial Taxes Officer, D Circle, Vs. Gordhandas Giddomal and Co
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Hegde, J. 1. After getting an adverse order from the Board of Revenue and after the Board of Revenue rejected his application for a reference of a question of law to the High Court, the Commercial Taxes Officer, D Circle, Jaipur, moved the High Court of Rajasthan under S. 15 of the Rajasthan Sales Tax Act requesting the High Court to direct the Board of Revenue to submit the question "whether on the facts and circumstances of the case the sales of cotton yarn and staple fibre yarn made to various dealers in Jaipur and other parts of Rajasthan by the respondent firm by endorsing the Railway Receipts in their favour are taxable under S. 3(b) read with Explanation I of the Central Sales Tax Act" to the High Court for getting the opinion of the High Court. The High Court rejected that application summarily observing : "Heard Learned Deputy Government Advocate. We are not satisfied prima facie, that this is a fit case for making a reference because it cannot be said that the Board of Revenue has gone wrong in holding, in the circumstances of the case, that the non-applicant in this case was liable to pay tax. It may be that the view taken by the Board of Revenue regarding the interpretation on S. 3(b) of the Central Sales Tax Act may not be quite correct. The application is, therefore, rejected", 2. From the order of the High Court it is clear that the High Court was not, satisfied about the interpretation of section 3(b) of the Central Sales Tax Act by the Board of Revenue but yet, surprisingly the High Court has summarily rejected the application of the Commercial Taxes Officer. 3. The material facts of the case are these : The assessee is a dealer in cotton yarn. They import cottonyarn from the Madurai Mills. The modus adopted by the assessee is to endorse the Railway Receipts in favour of other dealers in yarn in Jaipur and in other parts of the state. For their consolidated returns, they wanted that no sales tax should be levied in respect of the whole of the yarn brought into the State as according to them they were sales within the State of Rajasthan. Sale of yarn is exempted from payment of sales tax under the States sales tax law but liable to be taxed under the Central Sales Tax Act. The Deputy Commissioner held that only those sales which were made to dealers out side Jaipur would be Inter-State sales and other sales would be Inter-State sales. Aggrieved by that order, the assessee moved the Board of Revenue in revision seeking to get exemption in respect of all sales effected by them. The Commissioner Taxes Officer filed a cross-revision application challenging the correctness of the Deputy Commissioners order to the extent it went against him. The Board of Revenue accepted the contention of the assessee and held that the turnover relating to the sales in question is not liable to be taxed. Thereafter the Commercial Taxes Officer moved the Board of Revenue for referring the question mentioned earlier to the High Court for obtaining its opinion. 4. In our opinion the question of law, the appellant wanted the Tribunal to refer to the High Court did arise from the order of the Board of Revenue and the Board of Revenue was not justified in refusing to refer that question to High Court. We are also of the opinion that the High Court was not justified in rejecting the application of the appellant.
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1[ds]2. From the order of the High Court it is clear that the High Court was not, satisfied about the interpretation of section 3(b) of the Central Sales Tax Act by the Board of Revenue but yet, surprisingly the High Court has summarily rejected the application of the Commercial Taxes Officer4. In our opinion the question of law, the appellant wanted the Tribunal to refer to the High Court did arise from the order of the Board of Revenue and the Board of Revenue was not justified in refusing to refer that question to High Court. We are also of the opinion that the High Court was not justified in rejecting the application of the appellant.
| 1 | 646 | 130 |
### 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:
Hegde, J. 1. After getting an adverse order from the Board of Revenue and after the Board of Revenue rejected his application for a reference of a question of law to the High Court, the Commercial Taxes Officer, D Circle, Jaipur, moved the High Court of Rajasthan under S. 15 of the Rajasthan Sales Tax Act requesting the High Court to direct the Board of Revenue to submit the question "whether on the facts and circumstances of the case the sales of cotton yarn and staple fibre yarn made to various dealers in Jaipur and other parts of Rajasthan by the respondent firm by endorsing the Railway Receipts in their favour are taxable under S. 3(b) read with Explanation I of the Central Sales Tax Act" to the High Court for getting the opinion of the High Court. The High Court rejected that application summarily observing : "Heard Learned Deputy Government Advocate. We are not satisfied prima facie, that this is a fit case for making a reference because it cannot be said that the Board of Revenue has gone wrong in holding, in the circumstances of the case, that the non-applicant in this case was liable to pay tax. It may be that the view taken by the Board of Revenue regarding the interpretation on S. 3(b) of the Central Sales Tax Act may not be quite correct. The application is, therefore, rejected", 2. From the order of the High Court it is clear that the High Court was not, satisfied about the interpretation of section 3(b) of the Central Sales Tax Act by the Board of Revenue but yet, surprisingly the High Court has summarily rejected the application of the Commercial Taxes Officer. 3. The material facts of the case are these : The assessee is a dealer in cotton yarn. They import cottonyarn from the Madurai Mills. The modus adopted by the assessee is to endorse the Railway Receipts in favour of other dealers in yarn in Jaipur and in other parts of the state. For their consolidated returns, they wanted that no sales tax should be levied in respect of the whole of the yarn brought into the State as according to them they were sales within the State of Rajasthan. Sale of yarn is exempted from payment of sales tax under the States sales tax law but liable to be taxed under the Central Sales Tax Act. The Deputy Commissioner held that only those sales which were made to dealers out side Jaipur would be Inter-State sales and other sales would be Inter-State sales. Aggrieved by that order, the assessee moved the Board of Revenue in revision seeking to get exemption in respect of all sales effected by them. The Commissioner Taxes Officer filed a cross-revision application challenging the correctness of the Deputy Commissioners order to the extent it went against him. The Board of Revenue accepted the contention of the assessee and held that the turnover relating to the sales in question is not liable to be taxed. Thereafter the Commercial Taxes Officer moved the Board of Revenue for referring the question mentioned earlier to the High Court for obtaining its opinion. 4. In our opinion the question of law, the appellant wanted the Tribunal to refer to the High Court did arise from the order of the Board of Revenue and the Board of Revenue was not justified in refusing to refer that question to High Court. We are also of the opinion that the High Court was not justified in rejecting the application of the appellant.
### Response:
1
### Explanation:
2. From the order of the High Court it is clear that the High Court was not, satisfied about the interpretation of section 3(b) of the Central Sales Tax Act by the Board of Revenue but yet, surprisingly the High Court has summarily rejected the application of the Commercial Taxes Officer4. In our opinion the question of law, the appellant wanted the Tribunal to refer to the High Court did arise from the order of the Board of Revenue and the Board of Revenue was not justified in refusing to refer that question to High Court. We are also of the opinion that the High Court was not justified in rejecting the application of the appellant.
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THE BRANCH MANAGER INDIGO AIRLINES KOLKATA Vs. KALPANA RANI DEBBARMA
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The question of due care by the ground-staff of the appellant-Airlines would arise when the passengers are physically under their complete control as it had happened in the case of N. Satchidanand (supra). That is possible after the passengers have boarded the aircraft or may be in a given case at the operational stage whilst facilitating their entry to the boarding gate. In the present case, there is no assertion in the complaint or in the oral evidence produced by the respondents that they (respondents) had made some effort to take guidance or assistance of ground-staff of the appellant-Airlines at the airport after the boarding passes were issued to them for reaching at the boarding gates and that such assistance was not provided to them. 23. A priori, the decisions of the European Courts referred to by the National Commission in respect of the principle of right to care of passengers will be of no avail in the fact situation of this case. For, in those cases, the flight was cancelled due to strike at the airport of departure [as held in Finnair Oyj. (supra)] and/or extraordinary circumstances such as a volcanic eruption leading to the closure of the airspace [as held in Ryanair Ltd. (supra)]. That principle cannot be invoked in the fact situation of the present case not being a case of denied boarding as referred to in the CAR. Clause 3.2 of the CAR reads thus: - 3.2 Denied Boarding 3.2.1 When the number of passengers, who have been given confirmed bookings for travel on the flight and who have reported for the flight well within the specified time ahead of the departure of the flight, are more than the number of seats available, an airline must first ask for volunteers to give up their seats so as to make seats available for other booked passengers to travel on the flight, in exchange of such benefits/facilities as the airline, at its own discretion, may wish to offer, provided airports concerned have dedicated check-in facilities/gate areas which make it practical for the airline to do so. 3.2.2 If the boarding is denied due to condition stated at Para 3.2.1 to passengers against their will, the airline shall not be liable for any compensation in case alternate flight is arranged that is scheduled to depart within one hour of the original schedule departure time of the initial reservation. Failing to do so, the airline shall compensate the passengers as per the following provisions: a) An amount equal to 200% of booked one- way basic fare plus airline fuel charge, subject to maximum of INR 10,000, in case airline arranges alternate flight that is scheduled to depart within the 24 hours of the booked scheduled departure. b) An amount equal to 400% of booked one- way basic fare plus airline fuel charge, subject to maximum of INR 20,000, in case airline arranges alternate flight that is scheduled to depart more than 24 hours of the booked scheduled departure. c) In case passenger does not opt for alternate flight, refund of full value of ticket and compensation equal to 400% of booked one-way basic fare plus airline fuel charge, subject to maximum of INR 20,000. 3.2.3 A passenger booked on connecting flights of the same airline or of the other airline, shall be compensated by the airline of the first flight for the first leg in accordance with the provisions of Para 3.2.2 of this CAR, when he has been delayed at the departure station on account of denied boarding, but has arrived at the final destination at least three hours later than the scheduled arrival time. 24. Indubitably, the CAR is only executive instructions, which do not have the force of law. This Court in the case of Joint Action Committee of Airlines Pilots Association of India & Ors. vs. the Director General of Civil Aviation & Ors. (2011) 5 SCC 435 , had occasion to consider the question as to whether the CAR is a statute or a subordinate legislation. The Court concluded that the CAR was only executive instructions, which has been issued for guidance of the duty holders/stakeholders and to implement the scheme of the act and do not have the force of law. Concededly, clause 3.2 if read as a whole, in no way would apply to a case of Gate No Show, which is markedly different than denied boarding. In the facts of this case, it is unnecessary to dilate on the argument of the learned Amicus Curiae that expansive meaning be given to the expression denied boarding. 25. As a matter of fact, the coordinate Bench of the National Commission in the case of The Manager, Southern Region (supra) has had occasion to observe that it would not be appropriate to cast an obligation on any airlines to delay the departure of an aircraft beyond the scheduled time of the departure and to await late arrival of any passenger, whosoever he may be, howsoever highly or lowly placed. Even in that case, the complainant had failed to present himself at the departure lounge in time and there was no kind of negligence or deficiency in service on the part of the airlines. Similar situation obtains in the present case. The appellant-Airlines cannot be blamed for the non-reporting of the respondents at the boarding gate before 08:20 a.m. and in any case before 08:58 a.m., when the boarding gate was finally closed. 26. That takes us to the suggestions given by the learned Amicus Curiae for issuing directions to all the airlines to abide by uniform practice. We refrain from doing so and leave that to the competent authority (the DGCA) to consider the same and after interacting with all the stakeholders, take appropriate decision and issue instructions in that behalf, as may be advised. The competent authority (the DGCA) may do so within a reasonable time, preferably within six months from receipt of a copy of this judgment or any representation in that behalf.
|
0[ds]11. The present appeals emanate from the complaint filed before the consumer fora. While dealing with such a complaint, the jurisdiction or the nature of enquiry to be undertaken by the consumer fora is limited to the factum of deficiency in service and to award compensation only if that fact is substantiated by the party alleging the same. The expression deficiency in service has been defined in Section 2(1)(g) of the Consumer Protection Act, 1986, to mean any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service12. Thus, the enquiry in such proceedings is limited to grievance about deficiency in service, which is distinct from the tortuous acts of the other partyEven on a fair reading of the complaint and the evidence given on the same lines, all that can be discerned is that the respondents had reported at the check-in counter well in time and were issued boarding passes for flight No. 6E-861, which was scheduled to depart at 08:45 a.m., and that the flight took off leaving them (respondents) at the airport without informing them about the departure. There is no assertion that no public announcement was made at the boarding gate or on the T.V. screens displayed across within the airport before closure of the boarding gate and as to how they (respondents) were prevented or misled from reporting at the boarding gate 25 (twenty-five) minutes before the scheduled departure time (08:45 a.m.) of the flight in question, and moreso before the boarding gates were actually closed at 08:58 a.m. Be that as it may, the consumer fora committed manifest error in shifting the burden on the appellants and drawing adverse inference against them for having failed to produce evidence regarding announcements having been made to inform the passengers including the respondents to arrive at the boarding gate before its closure at 08:58 a.m. The appellants had clearly stated that as per the standard practice, such announcements are made at the boarding gate itself and the record in that behalf is not maintained by the Airlines (appellants), but by the airport authorities. The need to prove that fact would have arisen only if the respondents had clearly pleaded all relevant material facts and also discharged their initial burden of producing proof regarding deficiency in service by the ground-staff of the appellants at the airport after issuing boarding passes and before the closure of the boarding gate and departure of the flight13. Concededly, boarding passes were issued to the respondents at 07:35 a.m. at the check-in counters, whereafter they entered the security channel area and like any other prudent passenger, were expected to proceed towards the concerned boarding gate in right earnestAs aforementioned, there is no averment in the complaint or the evidence of the witness examined by the respondents to even remotely suggest as to what prevented the respondents, after entering the security channel area upon issue of boarding passes at 07:35 a.m., from reaching at the boarding gate before 08:20 a.m. and in any case when the boarding gate was actually closed at 08:58 a.m. Further, there is no averment in the complaint or deposed to by the witness of the complainants/respondents as to how the ground-staff of the appellant-Airlines was responsible and that it was not their own acts of commission or omission. It is not the case of the respondents that they were prevented, misled or obstructed by the ground-staff of the appellants from reaching at the boarding gate well in time and until it was closed treating as Gate No Show. It is also not the case of respondents that they had sought assistance of the ground-staff of the appellants and that was denied to them. In absence of such a case made out in the complaint or in the deposition and other evidence produced by the respondents, it is unfathomable as to how the respondents had substantiated the allegation of deficiency in service by the ground-staff of the appellants. Such a complaint ought not to proceed further for want of material facts constituting deficiency in service14. The fact that the respondents were not accommodated in the next flight for Agartala without payment of airfare, per se, cannot be regarded as deficiency in service in relation to the contract which stood discharged and accomplished after Gate No Show by the respondents and departure of the flight in terms of Articles 8.2 and 8.3 of the CoCIt is not the case of the respondents that the appellants had refused to refund the Government and Airport fees and/or taxes, as may be applicable. As aforesaid, the follow-up event of not accommodating the respondents in the next available flight for Agartala until payment of air-tickets would be of no avail, in the context of the contractual obligations of both the parties in terms of the CoC. The appellants at best were liable only to refund the Government and airport fees and/or taxes (if applicable) and not liable for any loss caused to the passenger(s). Had it been a case of denied boarding, the obligation of the appellants would have been somewhat different including to accommodate the passengers without insisting for air-ticket charges for the next flight available for reaching the desired destination. Therefore, in case of Gate No Show, not acceding to the request of the respondents until they paid air charges for the next flight, may or may not be a case of tortuous claim which, however, can be proceeded before any other forum but not consumer fora. For, the contract relating to travel plan of the respondents upon issue of the boarding passes at the airport check-in counters, was accomplished after Gate No Show and resultantly closure of the boarding gate at 08:58 a.m. At the cost of repetition, we hold that the deficiency in service must be ascribed only in respect of the stated contractual obligations of the parties15. Indubitably, the CoC is binding on both parties as predicated by this Court in N. Satchidanand (supra)We may usefully refer to paragraph 31 of the said decision, where the Court observed thus: -31. The fact that the conditions of carriage contain the exclusive jurisdiction clause is not disputed. The e- tickets do not contain the complete conditions of carriage but incorporate the conditions of carriage by reference. The interested passengers can ask the airline for a copy of the contract of carriage or visit the website and ascertain the same. Placing the conditions of carriage on the website and referring to the same in the e-ticket and making copies of conditions of carriage available at the airport counters for inspection is sufficient notice in regard to the terms of conditions of the carriage and will bind the parties. The mere fact that a passenger may not read or may not demand a copy does not mean that he will not be bound by the terms of contract of carriage. We cannot therefore, accept the finding of the High Court that the term relating to exclusive jurisdiction should be ignored on the ground that the passengers would not have read itThese observations apply on all fours to the case in hand. However, the State Commission distinguished this decision on the basis of facts of the case disregarding the underlying principle expounded in the aforesaid extracted portion of the judgment of this Court. The respondents, however, urge that in the present case, the air ticket did not contain the reference to the CoC. It is, however, not the case of the respondents (who are well educated, as respondent Nos. 1 and 2 claim to be Engineers working in Government establishment), that the website of the appellant-Airlines does not display the CoC or that the same was not made available at the airport check-in counter for inspection, which is the standard operating procedure followed by all the airlines. No such assertion has been made in the complaint as filed16. In our opinion, the approach of the consumer fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground-staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The consumer fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service17. The appellants have produced a boarding pass issued in the name of the Advocate for the appellant, to illustrate that the same contains the relevant information regarding the flight number, date, boarding time, departure time and more importantly, the notification that boarding gate closes 25 (twenty-five) minutes prior to the departure time and that boarding gate numbers are subject to change, which may be seen from the screen(s) displayed at the airport for latest updates. Admittedly, the boarding passes were issued to the respondents. Presumably, the same must have set out similar information being the standard practice followed by all the airlines. Indeed, the respondents have asserted in the complaint that the boarding passes were snatched away by the ground-staff of the appellants at the airport itself. As a matter of fact, this allegation is blissfully vague and bereft of any material facts. Further, it is crucial to note that it is not the case of the respondents that after the boarding passes were issued to them, they did not read the same to reassure themselves about the relevant information and the departure time of the flight indicated therein including the reporting time at the boarding gate. Nor is the case of the respondents that they had read the boarding pass and it did not contain the relevant information including regarding the necessity of reporting 25 (twenty-five) minutes before the departure time at the boarding gate. Nothing of this sort is either pleaded or stated in the evidence by the respondents. A similar plea that the boarding passes were snatched away by the ground-staff was taken in the case of The Manager, Southern Region, Air India, Madras & Ors. vs. V. Krishnaswamy 1994 (2) C.P.C. 171 decided by the National Commission on 19.7.1994 in First Appeal No. 445/1992, which came to be rejected. Even in the present case, the appellant-Airlines has denied the allegation and also suggested to the witness examined by the respondents that the complaint was false18. Concededly, it is the primary obligation of the passenger, who has been issued boarding pass to undergo the security-check procedure and reach at the boarding gate well before (at least 25 minutes before) the scheduled departure time. No doubt, it is said that the consumer is the king and the legislation is intended to safeguard and protect the rights and interests of the consumer, but that does not mean that he is extricated from the obligations under the contract in question much less to observe prudence and due care. It is not the case of the respondents that they were delayed during the security check much less due to the acts of commission or omission of the ground-staff of the appellants. In fact, nothing has been stated in the complaint or the evidence as to what activities were undertaken by the respondents after issue of boarding passes at the check-in counter at 07:35 a.m. until the departure of the flight and in particular, closure of the boarding gate at 08:58 a.m. The respondents having failed to take any initiative to ensure that they present themselves at the boarding gate before the scheduled time and considering the layout of the check-in counter upto the boarding gate, the respondents cannot be heard to complain about the deficiency in service by the ground-staff. Notably, the distance between the check-in counter, where boarding passes were issued, upto the boarding gate is so insignificant that there could be no just reason for the respondents not to report at the boarding gate between 07:35 a.m. till 08:58 a.m. The respondents have not offered any explanation for their inaction nor have mentioned about any act of commission or omission by the ground-staff of the appellant-Airlines at the airport during this period19. As aforesaid, after boarding pass is issued, the passenger is expected to proceed towards security channel area and head towards specified boarding gate on his own. There is no contractual obligation on the airlines to escort every passenger, after the boarding pass is issued to him at the check-in counter, up to the boarding gate. Further, the Airlines issuing boarding passes cannot be made liable for the misdeeds, inaction or so to say misunderstanding caused to the passengers, until assistance is sought from the ground-staff of the airlines at the airport well in time. It is not the case of the respondents that the boarding gate was changed at the last minute or there was any reason which created confusion attributable to airport/airlines officials, so as to invoke an expansive meaning of denied boarding. The fact situation of the present case is clearly one of Gate No Show, the making of the respondents and not that of denied boarding as such20. The National Commission erroneously relied on the dictum in Ruby (Chandra) Dutta vs. United India Insurance Co. Ltd. (2011) 11 SCC 269 to deny itself of the jurisdiction to entertain the revision petitions despite the fact that decisions assailed in the revision petitions were manifestly wrong and suffered from error of jurisdiction. In the fact situation of the present case, the National Commission ought to have exercised its jurisdiction and corrected the palpable and manifest error committed by the two consumer fora below21. The State Commission has referred to the observations in Dr. Bikas Roy & Anr. vs Interglobe Aviation Ltd. (IndiGo) (Decided on 22.2.2018 in Appeal Case No. A/42/2017) decided by the Commission taking the view that after issuing boarding pass, it is the duty of the airlines authority to help the passengers, so that they can board the flight well in time on completion of the security check-up. This is a sweeping observation. We do not agree with the same. We have already taken the view that there is no obligation on the airlines to escort every passenger after issuing him/her a boarding pass at the check-in counter until he/she reaches the boarding gate. That would be a very tall claim to make. Indeed, in a given case, if the passenger encounters difficulty or impediment to report at the boarding gate, he/she is expected to seek assistance of the ground-staff of the concerned airlines well in time. If such request is made, there is no reason to presume that the ground-staff of the concerned airlines will not extend logistical assistance to facilitate the passenger for reporting at the boarding gate in time. That, however, would be a matter to be enquired into on case to case basis. That question does not arise in the present case, as no such plea has been taken in the complaint or the evidence given on behalf of the respondents22. Additionally, the National Commission has invoked the principle of right to care of the passengers. The question of due care by the ground-staff of the appellant-Airlines would arise when the passengers are physically under their complete control as it had happened in the case of N. Satchidanand (supra). That is possible after the passengers have boarded the aircraft or may be in a given case at the operational stage whilst facilitating their entry to the boarding gate. In the present case, there is no assertion in the complaint or in the oral evidence produced by the respondents that they (respondents) had made some effort to take guidance or assistance of ground-staff of the appellant-Airlines at the airport after the boarding passes were issued to them for reaching at the boarding gates and that such assistance was not provided to them23. A priori, the decisions of the European Courts referred to by the National Commission in respect of the principle of right to care of passengers will be of no avail in the fact situation of this case. For, in those cases, the flight was cancelled due to strike at the airport of departure [as held in Finnair Oyj. (supra)] and/or extraordinary circumstances such as a volcanic eruption leading to the closure of the airspace [as held in Ryanair Ltd. (supra)]. That principle cannot be invoked in the fact situation of the present case not being a case of denied boarding as referred to in the CAR24. Indubitably, the CAR is only executive instructions, which do not have the force of law. This Court in the case of Joint Action Committee of Airlines Pilots Association of India & Ors. vs. the Director General of Civil Aviation & Ors. (2011) 5 SCC 435 , had occasion to consider the question as to whether the CAR is a statute or a subordinate legislation. The Court concluded that the CAR was only executive instructions, which has been issued for guidance of the duty holders/stakeholders and to implement the scheme of the act and do not have the force of law. Concededly, clause 3.2 if read as a whole, in no way would apply to a case of Gate No Show, which is markedly different than denied boarding. In the facts of this case, it is unnecessary to dilate on the argument of the learned Amicus Curiae that expansive meaning be given to the expression denied boardingappellant-Airlines cannot be blamed for the non-reporting of the respondents at the boarding gate before 08:20 a.m. and in any case before 08:58 a.m., when the boarding gate was finally closed26. That takes us to the suggestions given by the learned Amicus Curiae for issuing directions to all the airlines to abide by uniform practice. We refrain from doing so and leave that to the competent authority (the DGCA) to consider the same and after interacting with all the stakeholders, take appropriate decision and issue instructions in that behalf, as may be advised. The competent authority (the DGCA) may do so within a reasonable time, preferably within six months from receipt of a copy of this judgment or any representation in that behalf.
| 0 | 9,257 | 3,393 |
### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
The question of due care by the ground-staff of the appellant-Airlines would arise when the passengers are physically under their complete control as it had happened in the case of N. Satchidanand (supra). That is possible after the passengers have boarded the aircraft or may be in a given case at the operational stage whilst facilitating their entry to the boarding gate. In the present case, there is no assertion in the complaint or in the oral evidence produced by the respondents that they (respondents) had made some effort to take guidance or assistance of ground-staff of the appellant-Airlines at the airport after the boarding passes were issued to them for reaching at the boarding gates and that such assistance was not provided to them. 23. A priori, the decisions of the European Courts referred to by the National Commission in respect of the principle of right to care of passengers will be of no avail in the fact situation of this case. For, in those cases, the flight was cancelled due to strike at the airport of departure [as held in Finnair Oyj. (supra)] and/or extraordinary circumstances such as a volcanic eruption leading to the closure of the airspace [as held in Ryanair Ltd. (supra)]. That principle cannot be invoked in the fact situation of the present case not being a case of denied boarding as referred to in the CAR. Clause 3.2 of the CAR reads thus: - 3.2 Denied Boarding 3.2.1 When the number of passengers, who have been given confirmed bookings for travel on the flight and who have reported for the flight well within the specified time ahead of the departure of the flight, are more than the number of seats available, an airline must first ask for volunteers to give up their seats so as to make seats available for other booked passengers to travel on the flight, in exchange of such benefits/facilities as the airline, at its own discretion, may wish to offer, provided airports concerned have dedicated check-in facilities/gate areas which make it practical for the airline to do so. 3.2.2 If the boarding is denied due to condition stated at Para 3.2.1 to passengers against their will, the airline shall not be liable for any compensation in case alternate flight is arranged that is scheduled to depart within one hour of the original schedule departure time of the initial reservation. Failing to do so, the airline shall compensate the passengers as per the following provisions: a) An amount equal to 200% of booked one- way basic fare plus airline fuel charge, subject to maximum of INR 10,000, in case airline arranges alternate flight that is scheduled to depart within the 24 hours of the booked scheduled departure. b) An amount equal to 400% of booked one- way basic fare plus airline fuel charge, subject to maximum of INR 20,000, in case airline arranges alternate flight that is scheduled to depart more than 24 hours of the booked scheduled departure. c) In case passenger does not opt for alternate flight, refund of full value of ticket and compensation equal to 400% of booked one-way basic fare plus airline fuel charge, subject to maximum of INR 20,000. 3.2.3 A passenger booked on connecting flights of the same airline or of the other airline, shall be compensated by the airline of the first flight for the first leg in accordance with the provisions of Para 3.2.2 of this CAR, when he has been delayed at the departure station on account of denied boarding, but has arrived at the final destination at least three hours later than the scheduled arrival time. 24. Indubitably, the CAR is only executive instructions, which do not have the force of law. This Court in the case of Joint Action Committee of Airlines Pilots Association of India & Ors. vs. the Director General of Civil Aviation & Ors. (2011) 5 SCC 435 , had occasion to consider the question as to whether the CAR is a statute or a subordinate legislation. The Court concluded that the CAR was only executive instructions, which has been issued for guidance of the duty holders/stakeholders and to implement the scheme of the act and do not have the force of law. Concededly, clause 3.2 if read as a whole, in no way would apply to a case of Gate No Show, which is markedly different than denied boarding. In the facts of this case, it is unnecessary to dilate on the argument of the learned Amicus Curiae that expansive meaning be given to the expression denied boarding. 25. As a matter of fact, the coordinate Bench of the National Commission in the case of The Manager, Southern Region (supra) has had occasion to observe that it would not be appropriate to cast an obligation on any airlines to delay the departure of an aircraft beyond the scheduled time of the departure and to await late arrival of any passenger, whosoever he may be, howsoever highly or lowly placed. Even in that case, the complainant had failed to present himself at the departure lounge in time and there was no kind of negligence or deficiency in service on the part of the airlines. Similar situation obtains in the present case. The appellant-Airlines cannot be blamed for the non-reporting of the respondents at the boarding gate before 08:20 a.m. and in any case before 08:58 a.m., when the boarding gate was finally closed. 26. That takes us to the suggestions given by the learned Amicus Curiae for issuing directions to all the airlines to abide by uniform practice. We refrain from doing so and leave that to the competent authority (the DGCA) to consider the same and after interacting with all the stakeholders, take appropriate decision and issue instructions in that behalf, as may be advised. The competent authority (the DGCA) may do so within a reasonable time, preferably within six months from receipt of a copy of this judgment or any representation in that behalf.
### Response:
0
### Explanation:
boarding pass is issued, the passenger is expected to proceed towards security channel area and head towards specified boarding gate on his own. There is no contractual obligation on the airlines to escort every passenger, after the boarding pass is issued to him at the check-in counter, up to the boarding gate. Further, the Airlines issuing boarding passes cannot be made liable for the misdeeds, inaction or so to say misunderstanding caused to the passengers, until assistance is sought from the ground-staff of the airlines at the airport well in time. It is not the case of the respondents that the boarding gate was changed at the last minute or there was any reason which created confusion attributable to airport/airlines officials, so as to invoke an expansive meaning of denied boarding. The fact situation of the present case is clearly one of Gate No Show, the making of the respondents and not that of denied boarding as such20. The National Commission erroneously relied on the dictum in Ruby (Chandra) Dutta vs. United India Insurance Co. Ltd. (2011) 11 SCC 269 to deny itself of the jurisdiction to entertain the revision petitions despite the fact that decisions assailed in the revision petitions were manifestly wrong and suffered from error of jurisdiction. In the fact situation of the present case, the National Commission ought to have exercised its jurisdiction and corrected the palpable and manifest error committed by the two consumer fora below21. The State Commission has referred to the observations in Dr. Bikas Roy & Anr. vs Interglobe Aviation Ltd. (IndiGo) (Decided on 22.2.2018 in Appeal Case No. A/42/2017) decided by the Commission taking the view that after issuing boarding pass, it is the duty of the airlines authority to help the passengers, so that they can board the flight well in time on completion of the security check-up. This is a sweeping observation. We do not agree with the same. We have already taken the view that there is no obligation on the airlines to escort every passenger after issuing him/her a boarding pass at the check-in counter until he/she reaches the boarding gate. That would be a very tall claim to make. Indeed, in a given case, if the passenger encounters difficulty or impediment to report at the boarding gate, he/she is expected to seek assistance of the ground-staff of the concerned airlines well in time. If such request is made, there is no reason to presume that the ground-staff of the concerned airlines will not extend logistical assistance to facilitate the passenger for reporting at the boarding gate in time. That, however, would be a matter to be enquired into on case to case basis. That question does not arise in the present case, as no such plea has been taken in the complaint or the evidence given on behalf of the respondents22. Additionally, the National Commission has invoked the principle of right to care of the passengers. The question of due care by the ground-staff of the appellant-Airlines would arise when the passengers are physically under their complete control as it had happened in the case of N. Satchidanand (supra). That is possible after the passengers have boarded the aircraft or may be in a given case at the operational stage whilst facilitating their entry to the boarding gate. In the present case, there is no assertion in the complaint or in the oral evidence produced by the respondents that they (respondents) had made some effort to take guidance or assistance of ground-staff of the appellant-Airlines at the airport after the boarding passes were issued to them for reaching at the boarding gates and that such assistance was not provided to them23. A priori, the decisions of the European Courts referred to by the National Commission in respect of the principle of right to care of passengers will be of no avail in the fact situation of this case. For, in those cases, the flight was cancelled due to strike at the airport of departure [as held in Finnair Oyj. (supra)] and/or extraordinary circumstances such as a volcanic eruption leading to the closure of the airspace [as held in Ryanair Ltd. (supra)]. That principle cannot be invoked in the fact situation of the present case not being a case of denied boarding as referred to in the CAR24. Indubitably, the CAR is only executive instructions, which do not have the force of law. This Court in the case of Joint Action Committee of Airlines Pilots Association of India & Ors. vs. the Director General of Civil Aviation & Ors. (2011) 5 SCC 435 , had occasion to consider the question as to whether the CAR is a statute or a subordinate legislation. The Court concluded that the CAR was only executive instructions, which has been issued for guidance of the duty holders/stakeholders and to implement the scheme of the act and do not have the force of law. Concededly, clause 3.2 if read as a whole, in no way would apply to a case of Gate No Show, which is markedly different than denied boarding. In the facts of this case, it is unnecessary to dilate on the argument of the learned Amicus Curiae that expansive meaning be given to the expression denied boardingappellant-Airlines cannot be blamed for the non-reporting of the respondents at the boarding gate before 08:20 a.m. and in any case before 08:58 a.m., when the boarding gate was finally closed26. That takes us to the suggestions given by the learned Amicus Curiae for issuing directions to all the airlines to abide by uniform practice. We refrain from doing so and leave that to the competent authority (the DGCA) to consider the same and after interacting with all the stakeholders, take appropriate decision and issue instructions in that behalf, as may be advised. The competent authority (the DGCA) may do so within a reasonable time, preferably within six months from receipt of a copy of this judgment or any representation in that behalf.
|
O.N.G.C. Ltd Vs. Official Liquidator
|
of which a debt is to be paid and an intention to subject it to a charge in praesenti, the court must find the charge. Certain other decisions were also brought to our notice but it is not necessary to burden this judgment with them because in each case the question which the court would have to decide would be whether the agreement in question creates a charge in praesenti.:………” 22. The aforesaid observations would indicate that the court was examining the submissions made by the learned Attorney General. The effort of the Attorney General was to persuade this Court, on the cases mentioned in the aforesaid paragraph that there was an agreement which established an intention to create a charge. A reading of the order dated 15th April, 1987 clearly shows that it firstly gives the direction to the ONGC to continue the supply of gas at the rate of Rs.1000/- for 1000 cubic meter. Such a direction would be implemented only upon an undertaking given by the respondents that they will not charge encumber or alienate any asset except with the leave of this Court. A further direction was that the immoveable assets included in the respective undertaking will be made available for discharging the respective liabilities of the respondent company. The undertaking given by the company in liquidation in this case was as under : “3. I state that Respondent No.10 Company undertakes that none of immovable assets of the company will be further charged and encumbered hereafter with effect from 15.04.1987, i.e. from the date of order of this Hon’ble Court except with the leave of this Hon’ble Court.4. I state that Respondent NO.10 Company further undertakes not to alienate any of its immovable assets hereinafter with effect from 15.04.1987 except with the leave of this Hon’ble Court. The Respondent No.10 Company further undertakes to make available all its immovable assets in the event of discharging the liabilities which may arise on account of the difference between the price at which all the Gas being supplied to the company during the pendency of the proceedings in this connection and the price which may be determined by this Hon’ble court while disposing of the present Appeals finally." 23. A perusal of the aforesaid undertaking shows that Ambica Mills has not identified any particular immovable assets which would be made available in discharging the liabilities in favour of the appellant. Therefore, we have no hesitation in rejecting the submission of Mr.Kuhad that the interim order read with the undertaking expressed an intention to create an enforceable charge of any particular asset of the company in liquidation. 24. We are of the opinion that the judgment in the case of Praga Tools Ltd. Vs. Official Liquidator of Bengal Engineering Company (P) Ltd. (1984) 56 Comp. Cas.214 (Cal) would also not be applicable to the facts and circumstances of this case. Mr. Kuhad has relied on the following observations: “The fallacy in the argument of Mr. Mookherjee, in my view, is that after the passing of the order of S.K. Roy Chowdhury J. (as his Lordship then was), dated August 1, 1978, the position with regard to the security assumed a completely different complexion. By that order, as I have already indicated, the claim of the petitioning-creditor was settled at a certain amount. A mode for payment of that money was indicated. Then there is a default clause. That default clause contained a twin option either of initiating a fresh winding up proceeding or of executing the balance as a decree of court. It is only in the event of an option being exercised in favour of the last contingency, viz., in the event of the execution as a decree of court, that the security which was furnished pursuant to the order of R.M. Dutta J. would be a security for the applicant company for the satisfaction of the decree and would be the security for the decree until the decretal dues were paid. Thus, the benefit of the security in so far as the applicant company is concerned is entirely the creature of the order of Roy Chowdhury J. dated August 1, 1978. This can, in my view, by no stretch of imagination, be called a charge created "by a company" within the meaning of Section 125 of the Companies Act, 1956, requiring registration under the above section.It would follow, therefore, from what I have said that the question as to whether the security as originally furnished was registered under Section125 of the Companies Act, 1956, or not, would be totally irrelevant for the purpose of determining the right of the applicant company after the order of Roy Chowdhury J., dated August 1, 1978.” 25. The aforesaid observations, in our opinion, would not be applicable on the facts and circumstances of this case, as no charge have been created in favour of ONGC by any of the orders passed by this Court. 26. Mr. Kuhad has submitted that the respondents have specifically agreed to make the assets available for discharging the liability of the ONGC, this, according to Mr. Paras Kuhad, was tantamount to creating an enforceable charge. We are unable to accept the aforesaid submission. In the face of the directions given by this Court in the case of Oil and Natural Gas (supra) wherein this Court had directed that the ONGC is at liberty to take immediate steps to recover the charges due from the respondents in the light of the judgment. This Court did not direct that in view of the undertaking dated 27th May, 1987 the respondents have created enforceable charge in favour of ONGC. Furthermore, it is a matter of record that even the ONGC did not consider itself to be a secured creditor. At the time when the Ambica Mills Co. Ltd. came under the jurisdiction of the Official Liquidator, none of the two options adverted to earlier was exercised by ONGC. The plea of being a secured creditor is clearly an afterthought.
|
0[ds]In our opinion, the appellant cannot claim that the order dated 15th April, 1987 created an enforceable charge on the assets of the company in liquidation. We are of the opinion that the learned counsel for the respondents are quite right in their submissions that an injunction was issued only to ensure that the company in liquidation does not further encumber or create charges in favour of third parties over the assets of the company in liquidation. In our opinion, neither the interim order dated 15th April, 1987 nor the undertaking given pursuant thereto can be said to be a charge on the assets of the company in liquidation.21. The observations made in paragraph 7, in our opinion, is a complete answer to the submission made by Mr. Paras Kuhad. Clearly the appellant is only entitled to recover the dues at par with other unsecured creditors. In our opinion, the order dated 15th April, 1987, was only in the nature of restraint on the Company in liquidation not to further encumber any of its assets. It did not have the effect of creating a charge. Mr. Kuhad in support of his submission that the interim order dated 15th April, 1987 has to be treated as a mandate of the Court, has relied on J.K. (Bombay) (P) Ltd. Vs. New Kaiser-I-Hind Spinning and Weaving Co. Ltd. [(1969) 2 SCR 866] In the aforesaid judgment, undoubtedly it is held thatparticular form of words is necessary to create a charge and all that is necessary is that there must be a clear intention to make a property security for payment of money inThe aforesaid observations of this Court ought not to be read out of context. The judgments of this Court are not to be read as statutory instruments. The ratio of the judgment has to be culled out, keeping in view the facts and circumstances involved in a particular case.22. The aforesaid observations would indicate that the court was examining the submissions made by the learned Attorney General. The effort of the Attorney General was to persuade this Court, on the cases mentioned in the aforesaid paragraph that there was an agreement which established an intention to create a charge. A reading of the order dated 15th April, 1987 clearly shows that it firstly gives the direction to the ONGC to continue the supply of gas at the rate of Rs.1000/- for 1000 cubic meter. Such a direction would be implemented only upon an undertaking given by the respondents that they will not charge encumber or alienate any asset except with the leave of this Court. A further direction was that the immoveable assets included in the respective undertaking will be made available for discharging the respective liabilities of the respondent company.23. A perusal of the aforesaid undertaking shows that Ambica Mills has not identified any particular immovable assets which would be made available in discharging the liabilities in favour of the appellant. Therefore, we have no hesitation in rejecting the submission of Mr.Kuhad that the interim order read with the undertaking expressed an intention to create an enforceable charge of any particular asset of the company in liquidation.We are of the opinion that the judgment in the case of Praga Tools Ltd. Vs. Official Liquidator of Bengal Engineering Company (P) Ltd. (1984) 56 Comp. Cas.214 (Cal) would also not be applicable to the facts and circumstances of thisMr. Kuhad has submitted that the respondents have specifically agreed to make the assets available for discharging the liability of the ONGC, this, according to Mr. Paras Kuhad, was tantamount to creating an enforceable charge. We are unable to accept the aforesaid submission. In the face of the directions given by this Court in the case of Oil and Natural Gas (supra) wherein this Court had directed that the ONGC is at liberty to take immediate steps to recover the charges due from the respondents in the light of the judgment. This Court did not direct that in view of the undertaking dated 27th May, 1987 the respondents have created enforceable charge in favour of ONGC. Furthermore, it is a matter of record that even the ONGC did not consider itself to be a secured creditor. At the time when the Ambica Mills Co. Ltd. came under the jurisdiction of the Official Liquidator, none of the two options adverted to earlier was exercised by ONGC. The plea of being a secured creditor is clearly an
| 0 | 5,742 | 810 |
### 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:
of which a debt is to be paid and an intention to subject it to a charge in praesenti, the court must find the charge. Certain other decisions were also brought to our notice but it is not necessary to burden this judgment with them because in each case the question which the court would have to decide would be whether the agreement in question creates a charge in praesenti.:………” 22. The aforesaid observations would indicate that the court was examining the submissions made by the learned Attorney General. The effort of the Attorney General was to persuade this Court, on the cases mentioned in the aforesaid paragraph that there was an agreement which established an intention to create a charge. A reading of the order dated 15th April, 1987 clearly shows that it firstly gives the direction to the ONGC to continue the supply of gas at the rate of Rs.1000/- for 1000 cubic meter. Such a direction would be implemented only upon an undertaking given by the respondents that they will not charge encumber or alienate any asset except with the leave of this Court. A further direction was that the immoveable assets included in the respective undertaking will be made available for discharging the respective liabilities of the respondent company. The undertaking given by the company in liquidation in this case was as under : “3. I state that Respondent No.10 Company undertakes that none of immovable assets of the company will be further charged and encumbered hereafter with effect from 15.04.1987, i.e. from the date of order of this Hon’ble Court except with the leave of this Hon’ble Court.4. I state that Respondent NO.10 Company further undertakes not to alienate any of its immovable assets hereinafter with effect from 15.04.1987 except with the leave of this Hon’ble Court. The Respondent No.10 Company further undertakes to make available all its immovable assets in the event of discharging the liabilities which may arise on account of the difference between the price at which all the Gas being supplied to the company during the pendency of the proceedings in this connection and the price which may be determined by this Hon’ble court while disposing of the present Appeals finally." 23. A perusal of the aforesaid undertaking shows that Ambica Mills has not identified any particular immovable assets which would be made available in discharging the liabilities in favour of the appellant. Therefore, we have no hesitation in rejecting the submission of Mr.Kuhad that the interim order read with the undertaking expressed an intention to create an enforceable charge of any particular asset of the company in liquidation. 24. We are of the opinion that the judgment in the case of Praga Tools Ltd. Vs. Official Liquidator of Bengal Engineering Company (P) Ltd. (1984) 56 Comp. Cas.214 (Cal) would also not be applicable to the facts and circumstances of this case. Mr. Kuhad has relied on the following observations: “The fallacy in the argument of Mr. Mookherjee, in my view, is that after the passing of the order of S.K. Roy Chowdhury J. (as his Lordship then was), dated August 1, 1978, the position with regard to the security assumed a completely different complexion. By that order, as I have already indicated, the claim of the petitioning-creditor was settled at a certain amount. A mode for payment of that money was indicated. Then there is a default clause. That default clause contained a twin option either of initiating a fresh winding up proceeding or of executing the balance as a decree of court. It is only in the event of an option being exercised in favour of the last contingency, viz., in the event of the execution as a decree of court, that the security which was furnished pursuant to the order of R.M. Dutta J. would be a security for the applicant company for the satisfaction of the decree and would be the security for the decree until the decretal dues were paid. Thus, the benefit of the security in so far as the applicant company is concerned is entirely the creature of the order of Roy Chowdhury J. dated August 1, 1978. This can, in my view, by no stretch of imagination, be called a charge created "by a company" within the meaning of Section 125 of the Companies Act, 1956, requiring registration under the above section.It would follow, therefore, from what I have said that the question as to whether the security as originally furnished was registered under Section125 of the Companies Act, 1956, or not, would be totally irrelevant for the purpose of determining the right of the applicant company after the order of Roy Chowdhury J., dated August 1, 1978.” 25. The aforesaid observations, in our opinion, would not be applicable on the facts and circumstances of this case, as no charge have been created in favour of ONGC by any of the orders passed by this Court. 26. Mr. Kuhad has submitted that the respondents have specifically agreed to make the assets available for discharging the liability of the ONGC, this, according to Mr. Paras Kuhad, was tantamount to creating an enforceable charge. We are unable to accept the aforesaid submission. In the face of the directions given by this Court in the case of Oil and Natural Gas (supra) wherein this Court had directed that the ONGC is at liberty to take immediate steps to recover the charges due from the respondents in the light of the judgment. This Court did not direct that in view of the undertaking dated 27th May, 1987 the respondents have created enforceable charge in favour of ONGC. Furthermore, it is a matter of record that even the ONGC did not consider itself to be a secured creditor. At the time when the Ambica Mills Co. Ltd. came under the jurisdiction of the Official Liquidator, none of the two options adverted to earlier was exercised by ONGC. The plea of being a secured creditor is clearly an afterthought.
### Response:
0
### Explanation:
In our opinion, the appellant cannot claim that the order dated 15th April, 1987 created an enforceable charge on the assets of the company in liquidation. We are of the opinion that the learned counsel for the respondents are quite right in their submissions that an injunction was issued only to ensure that the company in liquidation does not further encumber or create charges in favour of third parties over the assets of the company in liquidation. In our opinion, neither the interim order dated 15th April, 1987 nor the undertaking given pursuant thereto can be said to be a charge on the assets of the company in liquidation.21. The observations made in paragraph 7, in our opinion, is a complete answer to the submission made by Mr. Paras Kuhad. Clearly the appellant is only entitled to recover the dues at par with other unsecured creditors. In our opinion, the order dated 15th April, 1987, was only in the nature of restraint on the Company in liquidation not to further encumber any of its assets. It did not have the effect of creating a charge. Mr. Kuhad in support of his submission that the interim order dated 15th April, 1987 has to be treated as a mandate of the Court, has relied on J.K. (Bombay) (P) Ltd. Vs. New Kaiser-I-Hind Spinning and Weaving Co. Ltd. [(1969) 2 SCR 866] In the aforesaid judgment, undoubtedly it is held thatparticular form of words is necessary to create a charge and all that is necessary is that there must be a clear intention to make a property security for payment of money inThe aforesaid observations of this Court ought not to be read out of context. The judgments of this Court are not to be read as statutory instruments. The ratio of the judgment has to be culled out, keeping in view the facts and circumstances involved in a particular case.22. The aforesaid observations would indicate that the court was examining the submissions made by the learned Attorney General. The effort of the Attorney General was to persuade this Court, on the cases mentioned in the aforesaid paragraph that there was an agreement which established an intention to create a charge. A reading of the order dated 15th April, 1987 clearly shows that it firstly gives the direction to the ONGC to continue the supply of gas at the rate of Rs.1000/- for 1000 cubic meter. Such a direction would be implemented only upon an undertaking given by the respondents that they will not charge encumber or alienate any asset except with the leave of this Court. A further direction was that the immoveable assets included in the respective undertaking will be made available for discharging the respective liabilities of the respondent company.23. A perusal of the aforesaid undertaking shows that Ambica Mills has not identified any particular immovable assets which would be made available in discharging the liabilities in favour of the appellant. Therefore, we have no hesitation in rejecting the submission of Mr.Kuhad that the interim order read with the undertaking expressed an intention to create an enforceable charge of any particular asset of the company in liquidation.We are of the opinion that the judgment in the case of Praga Tools Ltd. Vs. Official Liquidator of Bengal Engineering Company (P) Ltd. (1984) 56 Comp. Cas.214 (Cal) would also not be applicable to the facts and circumstances of thisMr. Kuhad has submitted that the respondents have specifically agreed to make the assets available for discharging the liability of the ONGC, this, according to Mr. Paras Kuhad, was tantamount to creating an enforceable charge. We are unable to accept the aforesaid submission. In the face of the directions given by this Court in the case of Oil and Natural Gas (supra) wherein this Court had directed that the ONGC is at liberty to take immediate steps to recover the charges due from the respondents in the light of the judgment. This Court did not direct that in view of the undertaking dated 27th May, 1987 the respondents have created enforceable charge in favour of ONGC. Furthermore, it is a matter of record that even the ONGC did not consider itself to be a secured creditor. At the time when the Ambica Mills Co. Ltd. came under the jurisdiction of the Official Liquidator, none of the two options adverted to earlier was exercised by ONGC. The plea of being a secured creditor is clearly an
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Commissioner of Income Tax, Chennai Vs. M/s. Bilahari Investment (P) Ltd
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a benefit over a number of years. There is a continuing benefit to the business of the company over the entire period. The liability should, therefore, be spread over the period of the debentures."Therefore, the matching concept, which we have referred to is well recognised by various judgments of the Supreme Court. In this case, the issue is whether the entire expenditure distorts the profits of a particular year." 14. Further, learned ASG has also placed reliance on the judgment of this Court in the case of J.K. Industries Ltd. & Anr. v. Union of India & Ors. reported in 2007 (13) SCALE 204. Paragraphs 82 and 83 of the said judgment are reproduced herein below: "82. Matching Concept is based on the accounting period concept. The paramount object of running a business is to earn profit. In order to ascertain the profit made by the business during a period, it is necessary that "revenues" of the period should be matched with the costs (expenses) of that period. In other words, income made by the business during a period can be measured only with the revenue earned during a period is compared with the expenditure incurred for earning that revenue. However, in cases of mergers and acquisitions, companies sometimes undertake to defer revenue expenditure over future years which brings in the concept of Deferred Tax Accounting. Therefore, today it cannot be said that the concept of accrual is limited to one year.83. It is a principle of recognizing costs (expenses) against revenues or against the relevant time period in order to determine the periodic income. This principle is an important component of accrual basis of accounting. As stated above, the object of AS 22 is to reconcile the matching principle with the Fair Valuation Principles. It may be noted that recognition, measurement and disclosure of various items of income, expenses, assets and liabilities is done only by Accounting Standards and not by provisions of the Companies Act." 15. Recognition/identification of income under the 1961 Act is attainable by several methods of accounting. It may be noted that the same result could be attained by any one of the accounting methods. Completed contract method is one such method. Similarly, percentage of completion method is another such method. 16. Under completed contract method, the revenue is not recognised until the contract is complete. Under the said method, costs are accumulated during the course of the contract. The profit and loss is established in the last accounting period and transferred to P & L account. The said method determines results only when contract is completed. This method leads to objective assessment of the results of the contract. 17. On the other hand, percentage of completion method tries to attain periodic recognition of income in order to reflect current performance. The amount of revenue recognised under this method is determined by reference to the stage of completion of the contract. The stage of completion can be looked at under this method by taking into consideration the proportion that costs incurred to date bears to the estimated total costs of contract. 18. The above indicates the difference between completed contract method and percentage of completion method. 19. In the judgment of the Bombay High Court in Taparia Tools Ltd. (supra) it has been held that in every case of substitution of one method by another method, the burden is on the Department to prove that the method in vogue is not correct and it distorts the profits of a particular year. Under the mercantile system of accounting based on the concept of accrual, the method of accounting followed by the assessees is relevant. In the present case, there is no finding recorded by the AO that the completed contract method distorts the profits of a particular year. Moreover, as held in various judgments, the Chit Scheme is one integrated scheme spread over a period of time, sometimes exceeding 12 months. We have examined computation of tax effect in these cases and we find that the entire exercise is revenue neutral, particularly when the scheme is read as one integrated scheme spread over a period of time.20. As stated above, we are concerned with assessment years 1991-1992 to 1997-1998. In the past, the Department had accepted the completed contract method and because of such acceptance, the assessees, in these cases, have followed the same method of accounting, particularly in the context of chit discount. Every assessee is entitled to arrange its affairs and follow the method of accounting, which the Department has earlier accepted. It is only in those cases where the Department records a finding that the method adopted by the assessee results in distortion of profits, the Department can insist on substitution of the existing method. Further, in the present cases, we find from the various statements produced before us, that the entire exercise, arising out of change of method from completed contract method to deferred revenue expenditure, is revenue neutral. Therefore, we do not wish to interfere with the impugned judgment of the High Court.21. Before concluding, we may point out that under section 211(2) of the Companies Act, Accounting Standards ("AS") enacted by the Institute of Chartered Accountants have now been adopted [see: judgment of this Court in J.K. Industries case (supra)]. Shri Tripathi, learned counsel for the Department, has placed reliance on AS 22 as the basis of his argument that the completed contract method should be substituted by deferred revenue expenditure (spreading the said expenditure on proportionate basis over a period of time). He also relied upon the concept of timing difference introduced by AS 22. It may be stated that all these developments are of recent origin. It is open to the Department to consider these new accounting standards and concepts in future cases of chit transactions. We express no opinion in that regard. Suffice it to state that, these new concepts and accounting standards have not been invoked by the Department in the present batch of civil appeals.
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0[ds]19. In the judgment of the Bombay High Court in Taparia Tools Ltd. (supra) it has been held that in every case of substitution of one method by another method, the burden is on the Department to prove that the method in vogue is not correct and it distorts the profits of a particular year. Under the mercantile system of accounting based on the concept of accrual, the method of accounting followed by the assessees is relevant. In the present case, there is no finding recorded by the AO that the completed contract method distorts the profits of a particular year. Moreover, as held in various judgments, the Chit Scheme is one integrated scheme spread over a period of time, sometimes exceeding 12 months. We have examined computation of tax effect in these cases and we find that the entire exercise is revenue neutral, particularly when the scheme is read as one integrated scheme spread over a period of time.20. As stated above, we are concerned with assessment years 1991-1992 to 1997-1998. In the past, the Department had accepted the completed contract method and because of such acceptance, the assessees, in these cases, have followed the same method of accounting, particularly in the context of chit discount. Every assessee is entitled to arrange its affairs and follow the method of accounting, which the Department has earlier accepted. It is only in those cases where the Department records a finding that the method adopted by the assessee results in distortion of profits, the Department can insist on substitution of the existing method. Further, in the present cases, we find from the various statements produced before us, that the entire exercise, arising out of change of method from completed contract method to deferred revenue expenditure, is revenue neutral. Therefore, we do not wish to interfere with the impugned judgment of the High Court.21. Before concluding, we may point out that under section 211(2) of the Companies Act, Accounting Standards ("AS") enacted by the Institute of Chartered Accountants have now been adopted [see: judgment of this Court in J.K. Industries case (supra)]. Shri Tripathi, learned counsel for the Department, has placed reliance on AS 22 as the basis of his argument that the completed contract method should be substituted by deferred revenue expenditure (spreading the said expenditure on proportionate basis over a period of time). He also relied upon the concept of timing difference introduced by AS 22. It may be stated that all these developments are of recent origin. It is open to the Department to consider these new accounting standards and concepts in future cases of chit transactions. We express no opinion in that regard. Suffice it to state that, these new concepts and accounting standards have not been invoked by the Department in the present batch of civil appeals.
| 0 | 2,927 | 534 |
### 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:
a benefit over a number of years. There is a continuing benefit to the business of the company over the entire period. The liability should, therefore, be spread over the period of the debentures."Therefore, the matching concept, which we have referred to is well recognised by various judgments of the Supreme Court. In this case, the issue is whether the entire expenditure distorts the profits of a particular year." 14. Further, learned ASG has also placed reliance on the judgment of this Court in the case of J.K. Industries Ltd. & Anr. v. Union of India & Ors. reported in 2007 (13) SCALE 204. Paragraphs 82 and 83 of the said judgment are reproduced herein below: "82. Matching Concept is based on the accounting period concept. The paramount object of running a business is to earn profit. In order to ascertain the profit made by the business during a period, it is necessary that "revenues" of the period should be matched with the costs (expenses) of that period. In other words, income made by the business during a period can be measured only with the revenue earned during a period is compared with the expenditure incurred for earning that revenue. However, in cases of mergers and acquisitions, companies sometimes undertake to defer revenue expenditure over future years which brings in the concept of Deferred Tax Accounting. Therefore, today it cannot be said that the concept of accrual is limited to one year.83. It is a principle of recognizing costs (expenses) against revenues or against the relevant time period in order to determine the periodic income. This principle is an important component of accrual basis of accounting. As stated above, the object of AS 22 is to reconcile the matching principle with the Fair Valuation Principles. It may be noted that recognition, measurement and disclosure of various items of income, expenses, assets and liabilities is done only by Accounting Standards and not by provisions of the Companies Act." 15. Recognition/identification of income under the 1961 Act is attainable by several methods of accounting. It may be noted that the same result could be attained by any one of the accounting methods. Completed contract method is one such method. Similarly, percentage of completion method is another such method. 16. Under completed contract method, the revenue is not recognised until the contract is complete. Under the said method, costs are accumulated during the course of the contract. The profit and loss is established in the last accounting period and transferred to P & L account. The said method determines results only when contract is completed. This method leads to objective assessment of the results of the contract. 17. On the other hand, percentage of completion method tries to attain periodic recognition of income in order to reflect current performance. The amount of revenue recognised under this method is determined by reference to the stage of completion of the contract. The stage of completion can be looked at under this method by taking into consideration the proportion that costs incurred to date bears to the estimated total costs of contract. 18. The above indicates the difference between completed contract method and percentage of completion method. 19. In the judgment of the Bombay High Court in Taparia Tools Ltd. (supra) it has been held that in every case of substitution of one method by another method, the burden is on the Department to prove that the method in vogue is not correct and it distorts the profits of a particular year. Under the mercantile system of accounting based on the concept of accrual, the method of accounting followed by the assessees is relevant. In the present case, there is no finding recorded by the AO that the completed contract method distorts the profits of a particular year. Moreover, as held in various judgments, the Chit Scheme is one integrated scheme spread over a period of time, sometimes exceeding 12 months. We have examined computation of tax effect in these cases and we find that the entire exercise is revenue neutral, particularly when the scheme is read as one integrated scheme spread over a period of time.20. As stated above, we are concerned with assessment years 1991-1992 to 1997-1998. In the past, the Department had accepted the completed contract method and because of such acceptance, the assessees, in these cases, have followed the same method of accounting, particularly in the context of chit discount. Every assessee is entitled to arrange its affairs and follow the method of accounting, which the Department has earlier accepted. It is only in those cases where the Department records a finding that the method adopted by the assessee results in distortion of profits, the Department can insist on substitution of the existing method. Further, in the present cases, we find from the various statements produced before us, that the entire exercise, arising out of change of method from completed contract method to deferred revenue expenditure, is revenue neutral. Therefore, we do not wish to interfere with the impugned judgment of the High Court.21. Before concluding, we may point out that under section 211(2) of the Companies Act, Accounting Standards ("AS") enacted by the Institute of Chartered Accountants have now been adopted [see: judgment of this Court in J.K. Industries case (supra)]. Shri Tripathi, learned counsel for the Department, has placed reliance on AS 22 as the basis of his argument that the completed contract method should be substituted by deferred revenue expenditure (spreading the said expenditure on proportionate basis over a period of time). He also relied upon the concept of timing difference introduced by AS 22. It may be stated that all these developments are of recent origin. It is open to the Department to consider these new accounting standards and concepts in future cases of chit transactions. We express no opinion in that regard. Suffice it to state that, these new concepts and accounting standards have not been invoked by the Department in the present batch of civil appeals.
### Response:
0
### Explanation:
19. In the judgment of the Bombay High Court in Taparia Tools Ltd. (supra) it has been held that in every case of substitution of one method by another method, the burden is on the Department to prove that the method in vogue is not correct and it distorts the profits of a particular year. Under the mercantile system of accounting based on the concept of accrual, the method of accounting followed by the assessees is relevant. In the present case, there is no finding recorded by the AO that the completed contract method distorts the profits of a particular year. Moreover, as held in various judgments, the Chit Scheme is one integrated scheme spread over a period of time, sometimes exceeding 12 months. We have examined computation of tax effect in these cases and we find that the entire exercise is revenue neutral, particularly when the scheme is read as one integrated scheme spread over a period of time.20. As stated above, we are concerned with assessment years 1991-1992 to 1997-1998. In the past, the Department had accepted the completed contract method and because of such acceptance, the assessees, in these cases, have followed the same method of accounting, particularly in the context of chit discount. Every assessee is entitled to arrange its affairs and follow the method of accounting, which the Department has earlier accepted. It is only in those cases where the Department records a finding that the method adopted by the assessee results in distortion of profits, the Department can insist on substitution of the existing method. Further, in the present cases, we find from the various statements produced before us, that the entire exercise, arising out of change of method from completed contract method to deferred revenue expenditure, is revenue neutral. Therefore, we do not wish to interfere with the impugned judgment of the High Court.21. Before concluding, we may point out that under section 211(2) of the Companies Act, Accounting Standards ("AS") enacted by the Institute of Chartered Accountants have now been adopted [see: judgment of this Court in J.K. Industries case (supra)]. Shri Tripathi, learned counsel for the Department, has placed reliance on AS 22 as the basis of his argument that the completed contract method should be substituted by deferred revenue expenditure (spreading the said expenditure on proportionate basis over a period of time). He also relied upon the concept of timing difference introduced by AS 22. It may be stated that all these developments are of recent origin. It is open to the Department to consider these new accounting standards and concepts in future cases of chit transactions. We express no opinion in that regard. Suffice it to state that, these new concepts and accounting standards have not been invoked by the Department in the present batch of civil appeals.
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Commissioner of Service Tax, Ahmedabad Vs. M/s Adani Gas Ltd
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not covered in existing meter connection. Further, few of the customers have also requested for termination of the GSAs due to various issues. In such cases, following amount shall be deducted from the Gas Connection Charges and balance shall be refundable. (1) Upgradation of Load: In this case the percentage of amount to be deducted shall be as follows: - table (2) Terminating of Agreement: In this case the percentage of amount to be deducted shall be as follows: table (emphasis supplied) The tabulation of the refund given to the industrial customers of the respondent for 2008-09 is as follows: table 34. The above data indicates that, contrary to the assertion of the respondent that the amount collected as gas connection charges is refunded at the time of discontinuation of the connection, the percentage which has been refunded to the industrial customers has varied from case to case ranging from 25 per cent to 100 per cent. The Adjudicating Authority observed: …the gas connection charges are refunded, based on the number of years of gas supply, when the gas connection contract is discontinued. This clearly evidences that gas connection charges in most of the cases are not refunded completely. The said noticee not only earns interest on the gas connection charges but also earns income by retaining some portion of the gas connection charges at the time of discontinuance of the contract. This is a very strange kind of security deposit which is not only devoid of interest but also on maturity the principal amount gets reduced. Moreover, in reality it may never be refunded if the gas connection is not discontinued. I have also seen the Internal Note dated 13.7.2007 submitted by the said noticee along with his written submission as Annexure-A and I find that the amount to be deducted is 100% when there is upgradation of load or termination of agreement between 3 rd year to 4 th year. This clearly establishes that the liability of the said noticee to refund the said Gas Connection Charges is only upto a period of three years, after that no amount is to be refunded and it eventually becomes income of the said noticee. Moreover, till the time the said amount is partially refunded it remains with the said noticee who is at liberty of using the same in whatever manner he wants to. I have seen the Annexure-B annexed with the written submission dated 4.1.2010 and find that the gas connection charges are refunded to only 13 customers during the year 2008-09. This indicates that effectively, the gas connection charges once recovered from the customers remain with the said noticee and in cases where it is refunded then also some amount is retained by the said notice. 35. With respect to the domestic consumers, the respondent, in their reply to the Show Cause Notice, argued that under the PNGRB Network Tariff Regulations 2008, entities such as the respondent are required to collect refundable interest-free security deposits towards safe-keeping of the meter and are to be refunded in full to the domestic PNG customer in case of a disconnection. The respondent argued that the PNGRB Network Tariff Regulations 2008 further provide that the amount collected as interest-free refundable security deposit is to exist as a liability in their books of account. In support of their contention, the respondent provided their Annual Report for the financial year 2008-09 which depicts the performance in terms of income and profitability. An extract of the report is provided below: Image 36. The above report provides that the respondent has treated an amount of Rs. 5000/- per domestic consumer as refundable interest-free security deposit amounting to Rs. 883.34 lacs. In assessing these rival contentions, the Adjudicating Authority held that: …I find that the attempt of the said notice to align the Finance Act, 1994, with the Petroleum and Natural Gas Regulatory Board Regulations 2008, to determine the taxability of a taxable event is not acceptable and goes in vain. Taxability of a service is governed under Section 65(105) of the Finance Act, 1994 and is not determined under any other Act or Regulations, unless and until the same is specifically provided in the definition given under Section 65(105) of the Finance Act, 1994. The taxability of a service is also not determined by the manner in which the Books of Accounts are maintained…. 37. We find ourselves in agreement with the findings of the Adjudicating Authority. The extent of the refund of gas connection charges collected from industrial, commercial and domestic consumers by the respondent depends on their usage. From the internal note dated 13 July 2007 and the tabulation of customers provided above, it is evident that the percentage of funds refunded varies from customer to customer, while the remaining amount is retained by the respondent. In any case, as regards the domestic customers, no deposit receipts have been provided and instead, the respondent has relied on the tabulation of the refund of deposit to industrial consumers to support their contention. Thus, the argument of the respondent that these gas connection charges collected from industrial, commercial and domestic consumers constitute a refundable security deposit is rejected. 38. Thus construed, we are of the view that the Adjudicating Authority was correct in concluding that the buyer of gas is as interested as the seller in ensuring and verifying the correct quantity of the gas supplied through the instrumentality of the measurement equipment and the pipelines. Additionally, the role of regulating pressure and ensuring the safety of supply of gas performed by the measurement equipment is an essential aspect for the use of the consumer. The SKID equipment fulfils the description in Section 65(105)(zzzzj) of a taxable service: service in relation tangible goods where the recipient of the service has use (without possession or effective control) of the goods. 39. For the above reasons, we are of the view that the Tribunal was in error in interfering with the findings and order of the Adjudicating Authority.
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1[ds]15. The applicability of Article 366(29-A)(d) was discussed in a decision of this Court in Bharat Sanchar Nigam Limited and another v. Union of India and others 2006 (3) SCC (1 ). ( BSNL). In BSNL, the Court held that the purpose of Article 366(29- A)(d) was to levy tax on those transactions where there was a transfer of the right to use any goods to the purchaser, instead of passing the title or ownership of the goods. Thus, by a fiction of law, these transactions were now treated as sale. Elucidating on the transfer of the right to use any goods, Dr A R Lakshmanan J. in a concurring opinion held:97. To constitute a transaction for the transfer of the right to use the goods, the transaction must have the following attributes:a. there must be goods available for delivery;b. there must be a consensus ad idem as to the identity of the goods;c. the transferee should have a legal right to use the goods- consequently all legal consequences of such use including any permissions or licenses required therefore should be available to the transferee;d. for the period during which the transferee has such legal right, it has to be the exclusion to the transferor; this is the necessary concomitant of the plain language of the statute viz. a transfer of the right to use and not merely a licence to use the goods;e. having transferred the right to use the goods during the period for which it is to be transferred, the owner cannot again transfer the same rights to others.(emphasis supplied)16. The test laid down in BSNL has been applied by courts to determine whether a transaction involves the transfer of the right to use any goods under Article 366(29-A)(d). In doing so, the courts have analysed the terms of the agreement underlying the transaction to ascertain whether effective control and possession has been transferred by the supplier to the recipient of the goods.17. Therefore, sales tax is levied in pursuance of Article 366(29-A)(d) on transactions which resemble a sale in substance as they result in a transfer of the right to use in goods, instead of the transfer of title in goods. The Finance Act, 1994, deriving authority from the residuary Entry 97 of the Union List, enabled the Central Government to levy tax on services. Service tax was introduced as a response to the advancement of the contemporary world where an indirect tax was necessary to capture consumption of services, which are economically similar to consumption of goods, in as much as they both satisfy human needs.18. The introduction of Section 65(105)(zzzzj) in the Finance Act, 1994, was with the intention of taxing such activities that enable the customers use of the service providers goods without transfer of the right of possession and effective control. This provision creates an element of taxation over a service, as opposed to a deemed sale under Article 366(29-A)(d). For the purpose of clarification, the Department of Revenue issued a Circular, D.O.F. No.334/1/2008-TRU, dated 29 February, 2008. The said circular clarified the applicability of Section 65(105)(zzzzj) vis-à-vis Article 366(29-A)(d).19. The above circular clarified that Section 65(105)(zzzzj) is applicable only to those transactions where there is a supply of tangible goods for use, without the transfer of possession or effective control to the recipient.20. The taxable service is defined as a service which is provided or which is to be provided by any person to another in relation to supply of tangible goods. The provision indicates that the goods may include machinery, equipment or appliances. The crucial ingredient of the definition is that the supply of tangible goods is for the use of another, without transferring the right of possession and effective control of such machinery, equipment and appliances. Hence, in order to attract the definition of a taxable service under sub-clause (zzzzj), the ingredients that have to be fulfilled are:(i) The provision of a service;(ii) The service is provided by a person to another person;(iii) The service is provided in relation to the supply of tangible goods, including machinery, equipment and appliances;(iv) There is no transfer of the right of possession;(v) Effective control over the goods continues to be with the service provider; and(vi) The goods are supplied for use by the recipient of the service.There is an element of service which is the foundation for the levy of the tax.21. A GSA entered into by the respondent on 17 November 2008 with one of its buyers (Polymer Industries) has been adverted to by the contesting parties as a representative sample. Under the terms of the GSA, the respondent as the seller agrees to sell and tender for delivery at the Delivery Point, gas in the quantities, times and at the prices determined in accordance with it.22. The GSA is an agreement between the respondent and its purchaser for regulating the terms on which gas is sold by the respondent. The agreement is of a take or pay genre. The buyer must lift the quantity contracted or pay for it. The agreement provides for the supply of gas at the Delivery Point through gas pipelines constructed from the distribution main to the measurement equipment. Further, both the seller and the buyer have provided warranties for maintaining the measurement equipment in good working condition, in their respective capacities. The measurement equipment, as has been re-iterated by the respondent in the course of their arguments, is installed for the measurement and recording of the volume and pressure of the gas delivered at the Delivery Point and for the safe operation of the buyers facilities.23. At the outset, it is clear from the provisions of the agreement, and it has been admitted by both the parties, that there is no transfer of ownership or possession of the pipelines or the measurement equipment (SKID equipment equipment) by the respondent to its customers. Clause 5.3 of the agreement specifically provides that the Measurement Equipment is to be supplied, installed and maintained by the seller at the cost of the buyer and that the ownership of the equipment will rest with the respondent forever. Clause 5.6 further clarifies that the buyer has no right to adjust, clean, handle, replace, maintain, remove or modify the measurement equipment. Clause 5.10 guarantees that the seller shall have the right of entry at all hours to the Measurement Equipment and associated apparatus at the Buyers premises. The pipelines are also part of the Sellers Facilities under the agreement and are constructed and maintained by the respondent at the cost of the customer. Thus, the ingredient of not transferring the ownership, possession or effective control of the goods under Section 65(105)(zzzzj) is satisfied.In determining as to whether the provisions of Section 65(105)(zzzzj) are attracted, it is necessary to distinguish between the rights and obligations of the respondent (as the seller of gas) and of their purchasers, from the issue of whether the measurement equipment (SKID equipment) is supplied for the use of the purchaser of gas, without transferring the right of possession and effective control.25. The purchaser of gas has an interest in ensuring the accuracy of billing and regulation of supply. The respondent is interested in ensuring that it receives payment for the quantity of gas which is contracted to be supplied to the purchaser. The SKID consists of regulators, valves, filters and the metering equipment. The SKID equipment regulates and records supply. Under the terms of the GSA, the obligation of the seller is to deliver gas to the buyer at the Delivery Point. The gas pipeline from the nearest distribution main to the buyers metering station is constructed and maintained by the seller at the cost of the buyer. The measurement equipment is supplied, installed and maintained by the seller at the cost of the buyer, inspite of ownership of the equipment resting with the respondent as the seller. The measurement equipment is installed and maintained exclusively by the seller. Clause 5.6 indicates that the buyer has no right to adjust, clean, handle, replace, maintain, remove or modify it in any manner. Clause 5.10 guarantees the sellers access to the Measurement Equipment at the buyers premises at all hours. Ownership, control and possession of the measurement equipment is with the respondent. The measurement equipment comprises not only of electronic meters that are useful for determining the quantity of gas supplied to the purchaser at the Delivery Point, but also of isolation valves, filters and regulators that are crucial for regulating the pressure of gas and ensuring safe operation of the buyers facilities. In order to maintain the sanctity of the equipment, the agreement casts the exclusive responsibility to install and maintain it on the respondent as the seller. The terms of the GSA would indicate that the quantity of gas supplied is to be measured at the Delivery Point. For this purpose, the measurement equipment is supplied, installed, owned and maintained by the seller at the cost of the buyer. The working of the measurement equipment is verified periodically by the parties to the agreement. If the buyer doubts its accuracy, this has to be communicated in writing to the seller, who alone is entitled to test, re-calibrate, remove or modify it. Similarly, if the seller has any doubt about the proper working of the measurement equipment it is entitled to check the meter in the presence of the representatives of the buyer. If according to the seller, the existing measurement equipment is not working satisfactorily it would be replaced at the cost of the buyer. These provisions indicate that the supply, installation and maintenance of the measurement equipment is exclusively carried out by the seller. The buyer has contractual remedies against the seller in terms of the GSA. These remedies to the buyer as a purchaser of gas are distinct from the issue as to whether the equipment for which gas connection charges are recovered is used by the buyer.26. Under Section 65(105)(zzzzj), the taxable service is provided or to be provided in relation to the supply of tangible goods for the use of another, without transferring the right of possession and effective control.27. The expression use does not have a fixed meaning. The content of the expression must be based on the context in which the expression is adopted. The use of an article may or may not result in a visible change in its form or substance. Moreover, the nature of use is conditioned by the kind of article which is put to use. Section 65(105) of the Finance Act, 1994 envisages myriad interpretations of the expression use, in a variety of services such as telecommunication, (Section 65(105)(zzzzb), Finance Act, 1994.) renting of immovable property,(Section 65(105)(zzz-z), Finance Act, 1994.) and services related to art, entertainment, and marriage. (Section 65(105)(zzzzr), Finance Act, 1994.) In the case of some articles, use may be signified by a physical operation of the article by the person who uses it. In such a case, actual physical use is what is meant by the supply of the goods for the use of another. In the case of others, the nature of the goods supplied impacts the character of the use to which the goods can be put. As an illustration, Section 65(105)(zzzze) of the Finance Act, 1994, seeks to tax services related to information technology and interprets the right to use to include the right to reproduce, distribute, sell, etc. (0 Circular D.O.F. No.334/1/2008-TRU, dated 29 February, 2008) This understanding of use differs from the supply of tangible goods under Section 65(105)(zzzzj) at hand, where effective control or possession is not ceded. Thus, physical operation is not the only or invariable feature of use. As a corollary to the same, technical expertise over the goods in question is not a sine qua non for determining the ability of the consumer to use the good. Therefore, the expression use also signifies the application of the goods for the purpose for which they have been supplied under the terms of a contract.28. The terms of the GSA indicate that the supply, installation, maintenance and repair of the measurement equipment is exclusively entrusted to the respondent as the seller. These provisions have been incorporated in the GSA to ensure that a buyer does not calibrate or tinker with the equipment. It is an incident of ownership and control being vested with the respondent. The purpose of the SKID equipment and its utility, lie in its ability to regulate the supply and achieve an accurate verification of that which is supplied; in the present case the supply of goods by the respondent to its buyers. This enures to the benefit of the seller and the buyer. The seller is concerned with the precise quantification of the gas which is supplied to the buyer. The buyer has an interest in ensuring the safety of its facilities and that the billing is based on the correct quantity of gas supplied and delivered under the GSA. To postulate, as did the Tribunal, that the measurement equipment is only for the benefit of the seller in measuring the quantity of the gas supplied would not be correct. The GSA is an agreement reflecting mutual rights and obligations between the seller and the purchaser. Both have a vital interest in ensuring the correct recording of the quantity of gas supplied. Additionally, delivery of gas in a safe and regulated manner, enabled by the SKID equipment, is an essential component of the GSA. The SKID equipment subserves the contractual rights of both the seller and the purchaser of gas. Indeed, without the SKID equipment there would be no gas supply agreement. In fact, in the GSA, the buyer has also provided a warranty to ensure that the Buyers Facilities remain technically and operationally compatible with the Sellers Facilities, both of which include the measurement equipment. This warranty would not have been provided if the measurement equipment was not of use to the buyer. The equipment is thus a vital ingredient of the agreement towards protecting the mutual rights of the parties and in ensuring the fulfilment of their reciprocal obligations as seller and buyer in regulating the supply of gas. As an incident of regulating supply, it determines the correct quantity of gas that is supplied. The obligation to supply, install and maintain the equipment is cast upon the seller as an incident of control and possession being with the seller. Section 65(105)(zzzzj) applies precisely in a situation where the use of the goods by a person is not accompanied by control and possession. Use in the context of SKID equipment postulates the utilization of the equipment for the purpose of fulfilling the purpose of the contract. Section 65(105)(zzzzj) does not require exclusivity of use. The SKID equipment is an intrinsic element of the service which is provided by the respondent, acting pursuant to the GSA, as a supplier of natural gas to its buyers.29. While interpreting the term use, the Tribunal in the impugned judgment has relied on its decision in the case of Meru Cab Company Pvt. Ltd. v. Commissioner of Central Excise, Mumbai 2016 (41) STR (444) (Tri-Mum) ( Meru Cab). Meru Cab involved the transfer of a vehicle from a radio taxi operator to the driver, in turn to provide a service to the passengers. We find that the reliance placed on Meru Cab is misplaced as the factual context of the use in the two cases is substantially different. In present matter, the agreement to supply gas, and the measurement equipment and pipelines only involves two parties - the respondent and the ultimate customer. Having said that, we are not expressing any opinion on the correctness of the decision in Meru Cab.30. Thus, we are of the view that the supply of the pipelines and the measurement equipment (SKID equipment) by the respondent, was of use to the customers and is taxable under Section 65(105)(zzzzj) of the Finance Act 1994.34. The above data indicates that, contrary to the assertion of the respondent that the amount collected as gas connection charges is refunded at the time of discontinuation of the connection, the percentage which has been refunded to the industrial customers has varied from case to case ranging from 25 per cent to 100 per cent.36. The above report provides that the respondent has treated an amount of Rs. 5000/- per domestic consumer as refundable interest-free security deposit amounting to Rs. 883.34 lacs. In assessing these rival contentions, the Adjudicating Authority held that:…I find that the attempt of the said notice to align the Finance Act, 1994, with the Petroleum and Natural Gas Regulatory Board Regulations 2008, to determine the taxability of a taxable event is not acceptable and goes in vain. Taxability of a service is governed under Section 65(105) of the Finance Act, 1994 and is not determined under any other Act or Regulations, unless and until the same is specifically provided in the definition given under Section 65(105) of the Finance Act, 1994. The taxability of a service is also not determined by the manner in which the Books of Accounts are maintained….. We find ourselves in agreement with the findings of the Adjudicating Authority. The extent of the refund of gas connection charges collected from industrial, commercial and domestic consumers by the respondent depends on their usage. From the internal note dated 13 July 2007 and the tabulation of customers provided above, it is evident that the percentage of funds refunded varies from customer to customer, while the remaining amount is retained by the respondent. In any case, as regards the domestic customers, no deposit receipts have been provided and instead, the respondent has relied on the tabulation of the refund of deposit to industrial consumers to support their contention. Thus, the argument of the respondent that these gas connection charges collected from industrial, commercial and domestic consumers constitute a refundable security deposit is rejected.38. Thus construed, we are of the view that the Adjudicating Authority was correct in concluding that the buyer of gas is as interested as the seller in ensuring and verifying the correct quantity of the gas supplied through the instrumentality of the measurement equipment and the pipelines. Additionally, the role of regulating pressure and ensuring the safety of supply of gas performed by the measurement equipment is an essential aspect for the use of the consumer. The SKID equipment fulfils the description in Section 65(105)(zzzzj) of a taxable service: service in relation tangible goods where the recipient of the service has use (without possession or effective control) of the goods.39. For the above reasons, we are of the view that the Tribunal was in error in interfering with the findings and order of the Adjudicating Authority.The Adjudicating Authority observed:…the gas connection charges are refunded, based on the number of years of gas supply, when the gas connection contract is discontinued. This clearly evidences that gas connection charges in most of the cases are not refunded completely. The said noticee not only earns interest on the gas connection charges but also earns income by retaining some portion of the gas connection charges at the time of discontinuance of the contract. This is a very strange kind of security deposit which is not only devoid of interest but also on maturity the principal amount gets reduced. Moreover, in reality it may never be refunded if the gas connection is not discontinued. I have also seen the Internal Note dated 13.7.2007 submitted by the said noticee along with his written submission as Annexure-A and I find that the amount to be deducted is 100% when there is upgradation of load or termination of agreement between 3 rd year to 4 th year. This clearly establishes that the liability of the said noticee to refund the said Gas Connection Charges is only upto a period of three years, after that no amount is to be refunded and it eventually becomes income of the said noticee. Moreover, till the time the said amount is partially refunded it remains with the said noticee who is at liberty of using the same in whatever manner he wants to. I have seen the Annexure-B annexed with the written submission dated 4.1.2010 and find that the gas connection charges are refunded to only 13 customers during the year 2008-09. This indicates that effectively, the gas connection charges once recovered from the customers remain with the said noticee and in cases where it is refunded then also some amount is retained by the said notice.
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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:
not covered in existing meter connection. Further, few of the customers have also requested for termination of the GSAs due to various issues. In such cases, following amount shall be deducted from the Gas Connection Charges and balance shall be refundable. (1) Upgradation of Load: In this case the percentage of amount to be deducted shall be as follows: - table (2) Terminating of Agreement: In this case the percentage of amount to be deducted shall be as follows: table (emphasis supplied) The tabulation of the refund given to the industrial customers of the respondent for 2008-09 is as follows: table 34. The above data indicates that, contrary to the assertion of the respondent that the amount collected as gas connection charges is refunded at the time of discontinuation of the connection, the percentage which has been refunded to the industrial customers has varied from case to case ranging from 25 per cent to 100 per cent. The Adjudicating Authority observed: …the gas connection charges are refunded, based on the number of years of gas supply, when the gas connection contract is discontinued. This clearly evidences that gas connection charges in most of the cases are not refunded completely. The said noticee not only earns interest on the gas connection charges but also earns income by retaining some portion of the gas connection charges at the time of discontinuance of the contract. This is a very strange kind of security deposit which is not only devoid of interest but also on maturity the principal amount gets reduced. Moreover, in reality it may never be refunded if the gas connection is not discontinued. I have also seen the Internal Note dated 13.7.2007 submitted by the said noticee along with his written submission as Annexure-A and I find that the amount to be deducted is 100% when there is upgradation of load or termination of agreement between 3 rd year to 4 th year. This clearly establishes that the liability of the said noticee to refund the said Gas Connection Charges is only upto a period of three years, after that no amount is to be refunded and it eventually becomes income of the said noticee. Moreover, till the time the said amount is partially refunded it remains with the said noticee who is at liberty of using the same in whatever manner he wants to. I have seen the Annexure-B annexed with the written submission dated 4.1.2010 and find that the gas connection charges are refunded to only 13 customers during the year 2008-09. This indicates that effectively, the gas connection charges once recovered from the customers remain with the said noticee and in cases where it is refunded then also some amount is retained by the said notice. 35. With respect to the domestic consumers, the respondent, in their reply to the Show Cause Notice, argued that under the PNGRB Network Tariff Regulations 2008, entities such as the respondent are required to collect refundable interest-free security deposits towards safe-keeping of the meter and are to be refunded in full to the domestic PNG customer in case of a disconnection. The respondent argued that the PNGRB Network Tariff Regulations 2008 further provide that the amount collected as interest-free refundable security deposit is to exist as a liability in their books of account. In support of their contention, the respondent provided their Annual Report for the financial year 2008-09 which depicts the performance in terms of income and profitability. An extract of the report is provided below: Image 36. The above report provides that the respondent has treated an amount of Rs. 5000/- per domestic consumer as refundable interest-free security deposit amounting to Rs. 883.34 lacs. In assessing these rival contentions, the Adjudicating Authority held that: …I find that the attempt of the said notice to align the Finance Act, 1994, with the Petroleum and Natural Gas Regulatory Board Regulations 2008, to determine the taxability of a taxable event is not acceptable and goes in vain. Taxability of a service is governed under Section 65(105) of the Finance Act, 1994 and is not determined under any other Act or Regulations, unless and until the same is specifically provided in the definition given under Section 65(105) of the Finance Act, 1994. The taxability of a service is also not determined by the manner in which the Books of Accounts are maintained…. 37. We find ourselves in agreement with the findings of the Adjudicating Authority. The extent of the refund of gas connection charges collected from industrial, commercial and domestic consumers by the respondent depends on their usage. From the internal note dated 13 July 2007 and the tabulation of customers provided above, it is evident that the percentage of funds refunded varies from customer to customer, while the remaining amount is retained by the respondent. In any case, as regards the domestic customers, no deposit receipts have been provided and instead, the respondent has relied on the tabulation of the refund of deposit to industrial consumers to support their contention. Thus, the argument of the respondent that these gas connection charges collected from industrial, commercial and domestic consumers constitute a refundable security deposit is rejected. 38. Thus construed, we are of the view that the Adjudicating Authority was correct in concluding that the buyer of gas is as interested as the seller in ensuring and verifying the correct quantity of the gas supplied through the instrumentality of the measurement equipment and the pipelines. Additionally, the role of regulating pressure and ensuring the safety of supply of gas performed by the measurement equipment is an essential aspect for the use of the consumer. The SKID equipment fulfils the description in Section 65(105)(zzzzj) of a taxable service: service in relation tangible goods where the recipient of the service has use (without possession or effective control) of the goods. 39. For the above reasons, we are of the view that the Tribunal was in error in interfering with the findings and order of the Adjudicating Authority.
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1
### Explanation:
not accompanied by control and possession. Use in the context of SKID equipment postulates the utilization of the equipment for the purpose of fulfilling the purpose of the contract. Section 65(105)(zzzzj) does not require exclusivity of use. The SKID equipment is an intrinsic element of the service which is provided by the respondent, acting pursuant to the GSA, as a supplier of natural gas to its buyers.29. While interpreting the term use, the Tribunal in the impugned judgment has relied on its decision in the case of Meru Cab Company Pvt. Ltd. v. Commissioner of Central Excise, Mumbai 2016 (41) STR (444) (Tri-Mum) ( Meru Cab). Meru Cab involved the transfer of a vehicle from a radio taxi operator to the driver, in turn to provide a service to the passengers. We find that the reliance placed on Meru Cab is misplaced as the factual context of the use in the two cases is substantially different. In present matter, the agreement to supply gas, and the measurement equipment and pipelines only involves two parties - the respondent and the ultimate customer. Having said that, we are not expressing any opinion on the correctness of the decision in Meru Cab.30. Thus, we are of the view that the supply of the pipelines and the measurement equipment (SKID equipment) by the respondent, was of use to the customers and is taxable under Section 65(105)(zzzzj) of the Finance Act 1994.34. The above data indicates that, contrary to the assertion of the respondent that the amount collected as gas connection charges is refunded at the time of discontinuation of the connection, the percentage which has been refunded to the industrial customers has varied from case to case ranging from 25 per cent to 100 per cent.36. The above report provides that the respondent has treated an amount of Rs. 5000/- per domestic consumer as refundable interest-free security deposit amounting to Rs. 883.34 lacs. In assessing these rival contentions, the Adjudicating Authority held that:…I find that the attempt of the said notice to align the Finance Act, 1994, with the Petroleum and Natural Gas Regulatory Board Regulations 2008, to determine the taxability of a taxable event is not acceptable and goes in vain. Taxability of a service is governed under Section 65(105) of the Finance Act, 1994 and is not determined under any other Act or Regulations, unless and until the same is specifically provided in the definition given under Section 65(105) of the Finance Act, 1994. The taxability of a service is also not determined by the manner in which the Books of Accounts are maintained….. We find ourselves in agreement with the findings of the Adjudicating Authority. The extent of the refund of gas connection charges collected from industrial, commercial and domestic consumers by the respondent depends on their usage. From the internal note dated 13 July 2007 and the tabulation of customers provided above, it is evident that the percentage of funds refunded varies from customer to customer, while the remaining amount is retained by the respondent. In any case, as regards the domestic customers, no deposit receipts have been provided and instead, the respondent has relied on the tabulation of the refund of deposit to industrial consumers to support their contention. Thus, the argument of the respondent that these gas connection charges collected from industrial, commercial and domestic consumers constitute a refundable security deposit is rejected.38. Thus construed, we are of the view that the Adjudicating Authority was correct in concluding that the buyer of gas is as interested as the seller in ensuring and verifying the correct quantity of the gas supplied through the instrumentality of the measurement equipment and the pipelines. Additionally, the role of regulating pressure and ensuring the safety of supply of gas performed by the measurement equipment is an essential aspect for the use of the consumer. The SKID equipment fulfils the description in Section 65(105)(zzzzj) of a taxable service: service in relation tangible goods where the recipient of the service has use (without possession or effective control) of the goods.39. For the above reasons, we are of the view that the Tribunal was in error in interfering with the findings and order of the Adjudicating Authority.The Adjudicating Authority observed:…the gas connection charges are refunded, based on the number of years of gas supply, when the gas connection contract is discontinued. This clearly evidences that gas connection charges in most of the cases are not refunded completely. The said noticee not only earns interest on the gas connection charges but also earns income by retaining some portion of the gas connection charges at the time of discontinuance of the contract. This is a very strange kind of security deposit which is not only devoid of interest but also on maturity the principal amount gets reduced. Moreover, in reality it may never be refunded if the gas connection is not discontinued. I have also seen the Internal Note dated 13.7.2007 submitted by the said noticee along with his written submission as Annexure-A and I find that the amount to be deducted is 100% when there is upgradation of load or termination of agreement between 3 rd year to 4 th year. This clearly establishes that the liability of the said noticee to refund the said Gas Connection Charges is only upto a period of three years, after that no amount is to be refunded and it eventually becomes income of the said noticee. Moreover, till the time the said amount is partially refunded it remains with the said noticee who is at liberty of using the same in whatever manner he wants to. I have seen the Annexure-B annexed with the written submission dated 4.1.2010 and find that the gas connection charges are refunded to only 13 customers during the year 2008-09. This indicates that effectively, the gas connection charges once recovered from the customers remain with the said noticee and in cases where it is refunded then also some amount is retained by the said notice.
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Kamlesh Kohli Vs. Escortrac Finance & Invest.Ltd.&Ors
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of Agreement was signed by Rajiv Kohli as constituted attorney of defendant Nos. 1 and 2. It was also not disputed that mother and son were living together. It was also admitted that in pursuance of the Memorandum of Agreement Smt. Kamlesh Kohli had signed the cheque in the sum of Rs. 65 lakhs which was given to the plaintiffs. In the appeals, it was contended before the Court on behalf of Smt. Kamlesh Kohli that her son was only attorney for prosecuting the writ petition and that he had no authority to enter into the agreement dated 19th November, 1992. The Court rejected the said contention by holding that, to say the least, the plea is wholly misconceived, mala fide and abuse of the process of law and may even amount to contempt of the Court. The Court further observed that such dishonest and convenient pleas deserve to be severally condemned. Accordingly, Appeal No. FAO. (OS) 197 of 1997 filed by Smt. Kamlesh Kohli was dismissed with costs quantified at Rs. 22,000 payable to plaintiffs.4. In appeal No. FAO (OS) 160 of 1997 filed by Rajiv Kohli (son), the Court granted unconditional leave to defend as it was averred by the plaintiffs in reply to the application for leave to defend that he was arrayed only as a proforma party and no relief was claimed against him personally.5. Against the said judgment and decree, the defendants Nos. 1 and 2 have preferred this appeal. 6. Learned Counsel for the appellant submitted that when leave to defend was granted to defendant No. 3, it ought to have been granted to the appellants otherwise there would be inconsistent decree. He submitted that the suit was for recovery of composite amount and, therefore, once leave to defend was granted to defendant No. 3, the Court ought to have granted leave to defend, to the remaining defendants i.e. the present appellants. He further submitted that considering the defence raised by defendant No. 2 this was a fit case for grant of leave to defend. 7. There is no substance in the contentions raised by the learned Counsel for the appellant. Civil Procedure Code nowhere prescribes that decree against some of the defendants to a suit cannot be passed or that if the suit is dismissed qua one defendant it is required to be dismissed against other defendants too. Order 1, Rule 6 makes the position clear by providing that plaintiff may at his option join as parties to the same suit all or any of the persons severally, or jointly and severally, liable on anyone contract including parties to bills of exchange, hundis and promissory notes. Therefore, even presuming that defendant No. 3 was jointly and severally liable to pay the amount specified in the Memorandum of Agreement, it was optional for the plaintiff to join him as party defendant. In the present case, however, that is not the situation because plaintiff has specifically averred that defendant No. 3 is joined as formal party. Further Order VIII, Rules 5 and 10, Order IX, Rule 11 and Order XV, Rule 2 make the position clear by providing that decree can be passed against the defendant who has not filed the written statement or who remains absent or who is not at issue with the plaintiff on any question of law or of fact. The said provisions are clear and unambiguous requiring no further elucidation, which read thus: Order VIII, Rule 5 Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability. Proviso…. Order VIII, Rule 10 Procedure when party fails to present written statement called for by Court. Where any party from whom a written statement [is required under Rule 1 or Rule 9] fails to present the same within the time [permitted or fixed by the Court, as the case may be, the Court shall] pronounce judgment against him, or make such order in relation to the suit as it thinks fit [and on the pronouncement of such judgment, a decree shall be drawn up]. Order IX, Rule 11 Where there are more defendants than one, and one or more of them appear, and the others do not appear, the suit shall proceed, and the Court shall, at the time of pronouncing judgment, make such order as it thinks fit with respect to the defendants who do not appear. Order XV, Rule 2 (1) Where there are more defendants than one, and anyone of the defendants is not at issue with the plaintiff on any question of law or of fact, the Court may at once pronounce judgment for or against such defendant and the suit shall proceed only against the other defendants. (2) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and the decree shall bear the date on which the judgment was pronounced. 8. Learned Counsel further submitted that this is a fit case in which Court ought to have granted leave to defend. In our view, me High Court rightly arrived at the conclusion that defence, is on the face of it, dishonest and mala fide. The reason is not too far to find out because in a writ petition filed by the plaintiffs, a Memorandum of Agreement was arrived at, which was duly signed by the plaintiffs and Smt. Kamlesh Kohli as well as Rajiv Kohli as attorney of Smt. Kamlesh Kohli. The Division Bench of the High Court, after recording the presence of constituted attorneys of the parties and considering the Memorandum of Agreement accompanied by application containing Annexures A and B permitted the plaintiffs to withdraw the writ petition. The plaintiffs acted upon the said agreement and withdrew the petition. The defendant also acted upon the said agreement and paid Rs. 65 lakhs to the plaintiff.
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0[ds]7. There is no substance in the contentions raised by the learned Counsel for the appellant. Civil Procedure Code nowhere prescribes that decree against some of the defendants to a suit cannot be passed or that if the suit is dismissed qua one defendant it is required to be dismissed against other defendants too. Order 1, Rule 6 makes the position clear by providing that plaintiff may at his option join as parties to the same suit all or any of the persons severally, or jointly and severally, liable on anyone contract including parties to bills of exchange, hundis and promissory notes. Therefore, even presuming that defendant No. 3 was jointly and severally liable to pay the amount specified in the Memorandum of Agreement, it was optional for the plaintiff to join him as party defendant. In the present case, however, that is not the situation because plaintiff has specifically averred that defendant No. 3 is joined as formal party. Further Order VIII, Rules 5 and 10, Order IX, Rule 11 and Order XV, Rule 2 make the position clear by providing that decree can be passed against the defendant who has not filed the written statement or who remains absent or who is not at issue with the plaintiff on any question of law or ofour view, me High Court rightly arrived at the conclusion that defence, is on the face of it, dishonest and mala fide. The reason is not too far to find out because in a writ petition filed by the plaintiffs, a Memorandum of Agreement was arrived at, which was duly signed by the plaintiffs and Smt. Kamlesh Kohli as well as Rajiv Kohli as attorney of Smt. Kamlesh Kohli. The Division Bench of the High Court, after recording the presence of constituted attorneys of the parties and considering the Memorandum of Agreement accompanied by application containing Annexures A and B permitted the plaintiffs to withdraw the writ petition. The plaintiffs acted upon the said agreement and withdrew the petition. The defendant also acted upon the said agreement and paid Rs. 65 lakhs to the plaintiff.
| 0 | 1,667 | 390 |
### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
of Agreement was signed by Rajiv Kohli as constituted attorney of defendant Nos. 1 and 2. It was also not disputed that mother and son were living together. It was also admitted that in pursuance of the Memorandum of Agreement Smt. Kamlesh Kohli had signed the cheque in the sum of Rs. 65 lakhs which was given to the plaintiffs. In the appeals, it was contended before the Court on behalf of Smt. Kamlesh Kohli that her son was only attorney for prosecuting the writ petition and that he had no authority to enter into the agreement dated 19th November, 1992. The Court rejected the said contention by holding that, to say the least, the plea is wholly misconceived, mala fide and abuse of the process of law and may even amount to contempt of the Court. The Court further observed that such dishonest and convenient pleas deserve to be severally condemned. Accordingly, Appeal No. FAO. (OS) 197 of 1997 filed by Smt. Kamlesh Kohli was dismissed with costs quantified at Rs. 22,000 payable to plaintiffs.4. In appeal No. FAO (OS) 160 of 1997 filed by Rajiv Kohli (son), the Court granted unconditional leave to defend as it was averred by the plaintiffs in reply to the application for leave to defend that he was arrayed only as a proforma party and no relief was claimed against him personally.5. Against the said judgment and decree, the defendants Nos. 1 and 2 have preferred this appeal. 6. Learned Counsel for the appellant submitted that when leave to defend was granted to defendant No. 3, it ought to have been granted to the appellants otherwise there would be inconsistent decree. He submitted that the suit was for recovery of composite amount and, therefore, once leave to defend was granted to defendant No. 3, the Court ought to have granted leave to defend, to the remaining defendants i.e. the present appellants. He further submitted that considering the defence raised by defendant No. 2 this was a fit case for grant of leave to defend. 7. There is no substance in the contentions raised by the learned Counsel for the appellant. Civil Procedure Code nowhere prescribes that decree against some of the defendants to a suit cannot be passed or that if the suit is dismissed qua one defendant it is required to be dismissed against other defendants too. Order 1, Rule 6 makes the position clear by providing that plaintiff may at his option join as parties to the same suit all or any of the persons severally, or jointly and severally, liable on anyone contract including parties to bills of exchange, hundis and promissory notes. Therefore, even presuming that defendant No. 3 was jointly and severally liable to pay the amount specified in the Memorandum of Agreement, it was optional for the plaintiff to join him as party defendant. In the present case, however, that is not the situation because plaintiff has specifically averred that defendant No. 3 is joined as formal party. Further Order VIII, Rules 5 and 10, Order IX, Rule 11 and Order XV, Rule 2 make the position clear by providing that decree can be passed against the defendant who has not filed the written statement or who remains absent or who is not at issue with the plaintiff on any question of law or of fact. The said provisions are clear and unambiguous requiring no further elucidation, which read thus: Order VIII, Rule 5 Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability. Proviso…. Order VIII, Rule 10 Procedure when party fails to present written statement called for by Court. Where any party from whom a written statement [is required under Rule 1 or Rule 9] fails to present the same within the time [permitted or fixed by the Court, as the case may be, the Court shall] pronounce judgment against him, or make such order in relation to the suit as it thinks fit [and on the pronouncement of such judgment, a decree shall be drawn up]. Order IX, Rule 11 Where there are more defendants than one, and one or more of them appear, and the others do not appear, the suit shall proceed, and the Court shall, at the time of pronouncing judgment, make such order as it thinks fit with respect to the defendants who do not appear. Order XV, Rule 2 (1) Where there are more defendants than one, and anyone of the defendants is not at issue with the plaintiff on any question of law or of fact, the Court may at once pronounce judgment for or against such defendant and the suit shall proceed only against the other defendants. (2) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and the decree shall bear the date on which the judgment was pronounced. 8. Learned Counsel further submitted that this is a fit case in which Court ought to have granted leave to defend. In our view, me High Court rightly arrived at the conclusion that defence, is on the face of it, dishonest and mala fide. The reason is not too far to find out because in a writ petition filed by the plaintiffs, a Memorandum of Agreement was arrived at, which was duly signed by the plaintiffs and Smt. Kamlesh Kohli as well as Rajiv Kohli as attorney of Smt. Kamlesh Kohli. The Division Bench of the High Court, after recording the presence of constituted attorneys of the parties and considering the Memorandum of Agreement accompanied by application containing Annexures A and B permitted the plaintiffs to withdraw the writ petition. The plaintiffs acted upon the said agreement and withdrew the petition. The defendant also acted upon the said agreement and paid Rs. 65 lakhs to the plaintiff.
### Response:
0
### Explanation:
7. There is no substance in the contentions raised by the learned Counsel for the appellant. Civil Procedure Code nowhere prescribes that decree against some of the defendants to a suit cannot be passed or that if the suit is dismissed qua one defendant it is required to be dismissed against other defendants too. Order 1, Rule 6 makes the position clear by providing that plaintiff may at his option join as parties to the same suit all or any of the persons severally, or jointly and severally, liable on anyone contract including parties to bills of exchange, hundis and promissory notes. Therefore, even presuming that defendant No. 3 was jointly and severally liable to pay the amount specified in the Memorandum of Agreement, it was optional for the plaintiff to join him as party defendant. In the present case, however, that is not the situation because plaintiff has specifically averred that defendant No. 3 is joined as formal party. Further Order VIII, Rules 5 and 10, Order IX, Rule 11 and Order XV, Rule 2 make the position clear by providing that decree can be passed against the defendant who has not filed the written statement or who remains absent or who is not at issue with the plaintiff on any question of law or ofour view, me High Court rightly arrived at the conclusion that defence, is on the face of it, dishonest and mala fide. The reason is not too far to find out because in a writ petition filed by the plaintiffs, a Memorandum of Agreement was arrived at, which was duly signed by the plaintiffs and Smt. Kamlesh Kohli as well as Rajiv Kohli as attorney of Smt. Kamlesh Kohli. The Division Bench of the High Court, after recording the presence of constituted attorneys of the parties and considering the Memorandum of Agreement accompanied by application containing Annexures A and B permitted the plaintiffs to withdraw the writ petition. The plaintiffs acted upon the said agreement and withdrew the petition. The defendant also acted upon the said agreement and paid Rs. 65 lakhs to the plaintiff.
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Dr. Michelle N. Pinto Souza (Deceased) Through Her Legal Heir & Another Vs. Marieta Teresa Petronila De Fatima Mascarenhas E. Pinto & Others
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1. Issue notice to the respondents. Learned counsel for the respondents has entered appearance and accepted the notice.2. Leave granted.3. With the consent of the parties, we have heard the appeal finally.4. This appeal is filed by the plaintiffs against the interim order dated 07.06.2017 passed by the High Court of Bombay at Goa in a pending Appeal from Order No. 63 of 2016 filed by the plaintiffs against the order dated 17.09.2016 passed by Civil Judge, Senior Division, Mapusa in pending Civil Suit No. 63/2014/A.5. Today this Court dismissed one connected SLP filed by the plaintiffs being SLP (C) No. 9627 of 2017 which also arose out of the same civil suit, i.e., Civil Suit No. 63/2014/A out of which this appeal arises. In other words, the SLP and this civil appeal arise out of same one civil suit.6. The said SLP arose out of one interlocutory order dated 03.06.2016 passed in the civil suit regarding grant of temporary injunction prayed by the plaintiffs (appellants herein) against the defendants (respondents herein) in relation to suit properties vide their application dated 29.11.2014.7. The Trial Court had granted the temporary injunction in relation to the suit properties. However, in an Appeal filed by the defendants before the High Court (Appeal from Order No. 51/2016), the High Court vide order 17.02.2017, set aside the order of the Trial Court dated 03.06.2016 and dismissed the plaintiffs application for grant of injunction.8. The plaintiff then filed the aforesaid SLP before this Court against the order of the High Court dated 17.02.2017 which, as mentioned above, was dismissed by this Court today. As a result of the dismissal of SLP, the plaintiffs application for grant of injunction was dismissed.9. So far as this appeal is concerned, it arose out of another interlocutory order passed by the Trial Court on 17.09.2016 in the same suit at the instance of defendants on their application dated 24.02.2015 in which the defendants had prayed a direction against the plaintiffs directing them to deposit a sum of L 42,00,000/-. The trial court allowed this application filed by the defendants vide their order dated 17.09.2016 and directed the plaintiffs to deposit a sum of L 42,00, 000/- in the Court for being invested in FDR.10. The plaintiffs filed an appeal (order 63/2016) before the High Court against the order dated 17.09.2016. It is in this appeal, the High Court passed the impugned interim order dated 07.06.2017 giving directions to the plaintiffs to deposit the money in terms of order dated 17.09.2016 which gave rise to filing of this appeal by the plaintiff before this court questioning the legality of the order dated 07.06.2017.11. In our view, since we have dismissed the SLP filed by the plaintiffs today arising out of injunction matter which has resulted in dismissal of injunction application of the plaintiffs, the order dated 17.09.2016 which was essentially passed by the Trial Court against the plaintiffs due to grant of injunction by the Trial Court deserves to be set aside. In other words, since the plaintiffs application for grant of injunction has been dismissed, a fortorari, the order dated 17.09.2016 passed by the Trial Court against the plaintiffs at the instance of the defendants on their application dated 24.02.2015 also can not sustain and has to be set aside.12. Indeed, learned counsel for the respondents fairly admitted this legal position arising in the case and rightly stated that he does not, therefore, press defendants application dated 24.02.2015.
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1[ds]11. In our view, since we have dismissed the SLP filed by the plaintiffs today arising out of injunction matter which has resulted in dismissal of injunction application of the plaintiffs, the order dated 17.09.2016 which was essentially passed by the Trial Court against the plaintiffs due to grant of injunction by the Trial Court deserves to be set aside. In other words, since the plaintiffs application for grant of injunction has been dismissed, a fortorari, the order dated 17.09.2016 passed by the Trial Court against the plaintiffs at the instance of the defendants on their application dated 24.02.2015 also can not sustain and has to be set aside.12. Indeed, learned counsel for the respondents fairly admitted this legal position arising in the case and rightly stated that he does not, therefore, press defendants application dated 24.02.2015.
| 1 | 636 | 153 |
### 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:
1. Issue notice to the respondents. Learned counsel for the respondents has entered appearance and accepted the notice.2. Leave granted.3. With the consent of the parties, we have heard the appeal finally.4. This appeal is filed by the plaintiffs against the interim order dated 07.06.2017 passed by the High Court of Bombay at Goa in a pending Appeal from Order No. 63 of 2016 filed by the plaintiffs against the order dated 17.09.2016 passed by Civil Judge, Senior Division, Mapusa in pending Civil Suit No. 63/2014/A.5. Today this Court dismissed one connected SLP filed by the plaintiffs being SLP (C) No. 9627 of 2017 which also arose out of the same civil suit, i.e., Civil Suit No. 63/2014/A out of which this appeal arises. In other words, the SLP and this civil appeal arise out of same one civil suit.6. The said SLP arose out of one interlocutory order dated 03.06.2016 passed in the civil suit regarding grant of temporary injunction prayed by the plaintiffs (appellants herein) against the defendants (respondents herein) in relation to suit properties vide their application dated 29.11.2014.7. The Trial Court had granted the temporary injunction in relation to the suit properties. However, in an Appeal filed by the defendants before the High Court (Appeal from Order No. 51/2016), the High Court vide order 17.02.2017, set aside the order of the Trial Court dated 03.06.2016 and dismissed the plaintiffs application for grant of injunction.8. The plaintiff then filed the aforesaid SLP before this Court against the order of the High Court dated 17.02.2017 which, as mentioned above, was dismissed by this Court today. As a result of the dismissal of SLP, the plaintiffs application for grant of injunction was dismissed.9. So far as this appeal is concerned, it arose out of another interlocutory order passed by the Trial Court on 17.09.2016 in the same suit at the instance of defendants on their application dated 24.02.2015 in which the defendants had prayed a direction against the plaintiffs directing them to deposit a sum of L 42,00,000/-. The trial court allowed this application filed by the defendants vide their order dated 17.09.2016 and directed the plaintiffs to deposit a sum of L 42,00, 000/- in the Court for being invested in FDR.10. The plaintiffs filed an appeal (order 63/2016) before the High Court against the order dated 17.09.2016. It is in this appeal, the High Court passed the impugned interim order dated 07.06.2017 giving directions to the plaintiffs to deposit the money in terms of order dated 17.09.2016 which gave rise to filing of this appeal by the plaintiff before this court questioning the legality of the order dated 07.06.2017.11. In our view, since we have dismissed the SLP filed by the plaintiffs today arising out of injunction matter which has resulted in dismissal of injunction application of the plaintiffs, the order dated 17.09.2016 which was essentially passed by the Trial Court against the plaintiffs due to grant of injunction by the Trial Court deserves to be set aside. In other words, since the plaintiffs application for grant of injunction has been dismissed, a fortorari, the order dated 17.09.2016 passed by the Trial Court against the plaintiffs at the instance of the defendants on their application dated 24.02.2015 also can not sustain and has to be set aside.12. Indeed, learned counsel for the respondents fairly admitted this legal position arising in the case and rightly stated that he does not, therefore, press defendants application dated 24.02.2015.
### Response:
1
### Explanation:
11. In our view, since we have dismissed the SLP filed by the plaintiffs today arising out of injunction matter which has resulted in dismissal of injunction application of the plaintiffs, the order dated 17.09.2016 which was essentially passed by the Trial Court against the plaintiffs due to grant of injunction by the Trial Court deserves to be set aside. In other words, since the plaintiffs application for grant of injunction has been dismissed, a fortorari, the order dated 17.09.2016 passed by the Trial Court against the plaintiffs at the instance of the defendants on their application dated 24.02.2015 also can not sustain and has to be set aside.12. Indeed, learned counsel for the respondents fairly admitted this legal position arising in the case and rightly stated that he does not, therefore, press defendants application dated 24.02.2015.
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State Of Haryana Etc Vs. Sampuran Singh Etc
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that if, after the commencement of the Act, April 15, 1953, any person acquires any land by inheritance or bequest or gift which, with the lands already held by him exceed in the in the permissible area, than he shall furnish to the Collector a return indicating the permissible area he desire s to retain. This he shall do within the prescribed period [S 19B(1)]. If he defaults to make the return, the Collector will select the land for him [19B(2). He will suffer a penalty for failure to furnish the declaration [19B(3)]. The excess land, i.e., the surplus area shall be at the disposal of Government for utilization under s. 10-A [19B(4)1. The surplus land will be used for re-settlement of tenants ejected or to be ejected under cl. (i) sub-s. (1) of s. 9 or other purpose notified by Government. The profound concern of the law to preserve the surplus stock is manifest from the obligation cast by sub-ss. (1) and (4) of 19B to declare and deliver excess lands. How you came to hold the excess is not the question. Why you should be permitted to keep more than what others can lawfully own is the query. A might have acquired by paying hard cash might have received by gift and by bequest and D by settlement and by partition. The agrarian policy is equitable ownership and the reform philosophy is re-distributive justice the rural goal being small peasant proprietorship. What difference does it make as to how you came by a large holding from the standpoint above outlined? The thrust of s. 1 9-B is that even if the source of the excess area is inheritance, bequest of gift, the capacity to own is conditioned by the permissible limit. Section 10-A does not militate against this mandate of s. 19-B. Indeed, s. 19-B had to be enacted because the High Court took the view that area which became surplus subsequent to April 15, 1953 was not hit by the ceiling set and land acquired by an heir by inheritance is saved from utilisation by the State. Section 10-(a) is wide in its terms and encompasses all surplus area, howsoever obtained. Even s. 10A(b) strikes not discordant note. All that it says and means is that lands acquired by an heir by inheritance are saved in so far as dispositions of such lands are concerned. T he drafting of the saving clause is cumbersome but the sense is and, having regard to the conspectus, can only be that although in the hands of the propositus, it is surplus land, if among the heirs it is not, then their transfers will not be affected by the interdict of s. 10-A(a) the sins of the father shall not set the teeth of the children on edge. If the heirs are otherwise small holders, the fact that their father was a large owner will not deprive the former of their heritage , if it is less than the permissible area. We see no conflict between s. 10-A and 19B. Assuming some inconsistency, primacy goes to s. 19B which effectuates the primary object. It is settled law that Courts should favour an interpretation that promotes the general purpose of an Act rather than one that does not.Counsel for the respondents adopted the arguments which found favour with the High Court and pressed two points. The scheme of the Act, according to the learned Judges, was to see that no one held in excess of the permissible area and since by the gift to the son or wife the latter had only lands within permissible limits, there was no frustration of the policy of the law This reasoning is repugnant to the basic scheme because the surplus pool will be adversely affected if gifts and other transfers which will skim off surplus were to be allowed. Indeed, the flaw in the High Courts argument is that if it were allowed to prevail, there will be no surplus land at all, every large holder being free to screen his surplus in the names of his with and kin or servants or reliable friends, by going through alienatory exercises. A legislation which has provided for ignoring decrees diminishing surplus lands and has otherwise prevented the escape of excess area by voluntary transfers, cannot conceivably be intended to permit inherited excesses.11. The second argument which appealed to the High Court is a little curious, and somewhat difficult to follow . Section 19-B directs the owner who, by inheritance, comes to own an excess area, to make a declaration of his lands within a prescribed time. This does rot mean that the time lag is statutorily given for executing gifts and transfers to def eat the law itself. Such a conclusion would be obviously absurd. What is intended is to give some time to the, heir to ascertain the assets he has inherited, make the choice of his reserved area which he likes to keep and make the necessary declaration. A processual facility cannot be converted into an opportunity to pervert and to thwart the substantive object of the law. After all, courts, faced with special case situations, have creatively to interpret legislation. The courts are finishers, refiners and polishers of legislation which comes to them in a state requiring varying degrees of further. processing, said Donaldson J., in Corocraft Ltd. v. Pan American Airways Inc.([1968] 3 W.L.R. 714, 732) and indeed it is no secret that courts constantly give their own shape to enactments.We feel that when economic legislation in the implementation of Part lV of the Constitution strikes new ground and takes liberties with old jurisprudence, there looms an interpretation problem of some dimensions which Indian jurists will have to tackle. The genre of agrarian reform laws, with special constitutional status, as it were, warrants interpretative skills which will stifle evasive attempts, specially by way of gifts and bequests and suspect transfers. Here ss. 10-A, 19-A and 19B, inter alia, strike at these tactics.12.
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0[ds]The thrust of s. 1 9-B is that even if the source of the excess area is inheritance, bequest of gift, the capacity to own is conditioned by the permissible limit. Section 10-A does not militate against this mandate of s. 19-B. Indeed, s. 19-B had to be enacted because the High Court took the view that area which became surplus subsequent to April 15, 1953 was not hit by the ceiling set and land acquired by an heir by inheritance is saved from utilisation by the State. Section 10-(a) is wide in its terms and encompasses all surplus area, howsoever obtained. Even s. 10A(b) strikes not discordant note. All that it says and means is that lands acquired by an heir by inheritance are saved in so far as dispositions of such lands are concerned. T he drafting of the saving clause is cumbersome but the sense is and, having regard to the conspectus, can only be that although in the hands of the propositus, it is surplus land, if among the heirs it is not, then their transfers will not be affected by the interdict of s. 10-A(a) the sins of the father shall not set the teeth of the children on edge. If the heirs are otherwise small holders, the fact that their father was a large owner will not deprive the former of their heritage , if it is less than the permissiblesee no conflict between s. 10-A and 19B. Assuming some inconsistency, primacy goes to s. 19B which effectuates the primary object. It is settled law that Courts should favour an interpretation that promotes the general purpose of an Act rather than one that does not.Counsel for the respondents adopted the arguments which found favour with the High Court and pressed two points. The scheme of the Act, according to the learned Judges, was to see that no one held in excess of the permissible area and since by the gift to the son or wife the latter had only lands within permissible limits, there was no frustration of the policy of the law This reasoning is repugnant to the basic scheme because the surplus pool will be adversely affected if gifts and other transfers which will skim off surplus were to be allowed. Indeed, the flaw in the High Courts argument is that if it were allowed to prevail, there will be no surplus land at all, every large holder being free to screen his surplus in the names of his with and kin or servants or reliable friends, by going through alienatory exercises. A legislation which has provided for ignoring decrees diminishing surplus lands and has otherwise prevented the escape of excess area by voluntary transfers, cannot conceivably be intended to permit inheritedsecond argument which appealed to the High Court is a little curious, and somewhat difficult to follow . Section 19-B directs the owner who, by inheritance, comes to own an excess area, to make a declaration of his lands within a prescribed time. This does rot mean that the time lag is statutorily given for executing gifts and transfers to def eat the law itself. Such a conclusion would be obviously absurd. What is intended is to give some time to the, heir to ascertain the assets he has inherited, make the choice of his reserved area which he likes to keep and make the necessary declaration. A processual facility cannot be converted into an opportunity to pervert and to thwart the substantive object of the law. After all, courts, faced with special case situations, have creatively to interpretfeel that when economic legislation in the implementation of Part lV of the Constitution strikes new ground and takes liberties with old jurisprudence, there looms an interpretation problem of some dimensions which Indian jurists will have to tackle. The genre of agrarian reform laws, with special constitutional status, as it were, warrants interpretative skills which will stifle evasive attempts, specially by way of gifts and bequests and suspect transfers. Here ss. 10-A, 19-A and 19B, inter alia, strike at these tactics.
| 0 | 4,333 | 751 |
### 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:
that if, after the commencement of the Act, April 15, 1953, any person acquires any land by inheritance or bequest or gift which, with the lands already held by him exceed in the in the permissible area, than he shall furnish to the Collector a return indicating the permissible area he desire s to retain. This he shall do within the prescribed period [S 19B(1)]. If he defaults to make the return, the Collector will select the land for him [19B(2). He will suffer a penalty for failure to furnish the declaration [19B(3)]. The excess land, i.e., the surplus area shall be at the disposal of Government for utilization under s. 10-A [19B(4)1. The surplus land will be used for re-settlement of tenants ejected or to be ejected under cl. (i) sub-s. (1) of s. 9 or other purpose notified by Government. The profound concern of the law to preserve the surplus stock is manifest from the obligation cast by sub-ss. (1) and (4) of 19B to declare and deliver excess lands. How you came to hold the excess is not the question. Why you should be permitted to keep more than what others can lawfully own is the query. A might have acquired by paying hard cash might have received by gift and by bequest and D by settlement and by partition. The agrarian policy is equitable ownership and the reform philosophy is re-distributive justice the rural goal being small peasant proprietorship. What difference does it make as to how you came by a large holding from the standpoint above outlined? The thrust of s. 1 9-B is that even if the source of the excess area is inheritance, bequest of gift, the capacity to own is conditioned by the permissible limit. Section 10-A does not militate against this mandate of s. 19-B. Indeed, s. 19-B had to be enacted because the High Court took the view that area which became surplus subsequent to April 15, 1953 was not hit by the ceiling set and land acquired by an heir by inheritance is saved from utilisation by the State. Section 10-(a) is wide in its terms and encompasses all surplus area, howsoever obtained. Even s. 10A(b) strikes not discordant note. All that it says and means is that lands acquired by an heir by inheritance are saved in so far as dispositions of such lands are concerned. T he drafting of the saving clause is cumbersome but the sense is and, having regard to the conspectus, can only be that although in the hands of the propositus, it is surplus land, if among the heirs it is not, then their transfers will not be affected by the interdict of s. 10-A(a) the sins of the father shall not set the teeth of the children on edge. If the heirs are otherwise small holders, the fact that their father was a large owner will not deprive the former of their heritage , if it is less than the permissible area. We see no conflict between s. 10-A and 19B. Assuming some inconsistency, primacy goes to s. 19B which effectuates the primary object. It is settled law that Courts should favour an interpretation that promotes the general purpose of an Act rather than one that does not.Counsel for the respondents adopted the arguments which found favour with the High Court and pressed two points. The scheme of the Act, according to the learned Judges, was to see that no one held in excess of the permissible area and since by the gift to the son or wife the latter had only lands within permissible limits, there was no frustration of the policy of the law This reasoning is repugnant to the basic scheme because the surplus pool will be adversely affected if gifts and other transfers which will skim off surplus were to be allowed. Indeed, the flaw in the High Courts argument is that if it were allowed to prevail, there will be no surplus land at all, every large holder being free to screen his surplus in the names of his with and kin or servants or reliable friends, by going through alienatory exercises. A legislation which has provided for ignoring decrees diminishing surplus lands and has otherwise prevented the escape of excess area by voluntary transfers, cannot conceivably be intended to permit inherited excesses.11. The second argument which appealed to the High Court is a little curious, and somewhat difficult to follow . Section 19-B directs the owner who, by inheritance, comes to own an excess area, to make a declaration of his lands within a prescribed time. This does rot mean that the time lag is statutorily given for executing gifts and transfers to def eat the law itself. Such a conclusion would be obviously absurd. What is intended is to give some time to the, heir to ascertain the assets he has inherited, make the choice of his reserved area which he likes to keep and make the necessary declaration. A processual facility cannot be converted into an opportunity to pervert and to thwart the substantive object of the law. After all, courts, faced with special case situations, have creatively to interpret legislation. The courts are finishers, refiners and polishers of legislation which comes to them in a state requiring varying degrees of further. processing, said Donaldson J., in Corocraft Ltd. v. Pan American Airways Inc.([1968] 3 W.L.R. 714, 732) and indeed it is no secret that courts constantly give their own shape to enactments.We feel that when economic legislation in the implementation of Part lV of the Constitution strikes new ground and takes liberties with old jurisprudence, there looms an interpretation problem of some dimensions which Indian jurists will have to tackle. The genre of agrarian reform laws, with special constitutional status, as it were, warrants interpretative skills which will stifle evasive attempts, specially by way of gifts and bequests and suspect transfers. Here ss. 10-A, 19-A and 19B, inter alia, strike at these tactics.12.
### Response:
0
### Explanation:
The thrust of s. 1 9-B is that even if the source of the excess area is inheritance, bequest of gift, the capacity to own is conditioned by the permissible limit. Section 10-A does not militate against this mandate of s. 19-B. Indeed, s. 19-B had to be enacted because the High Court took the view that area which became surplus subsequent to April 15, 1953 was not hit by the ceiling set and land acquired by an heir by inheritance is saved from utilisation by the State. Section 10-(a) is wide in its terms and encompasses all surplus area, howsoever obtained. Even s. 10A(b) strikes not discordant note. All that it says and means is that lands acquired by an heir by inheritance are saved in so far as dispositions of such lands are concerned. T he drafting of the saving clause is cumbersome but the sense is and, having regard to the conspectus, can only be that although in the hands of the propositus, it is surplus land, if among the heirs it is not, then their transfers will not be affected by the interdict of s. 10-A(a) the sins of the father shall not set the teeth of the children on edge. If the heirs are otherwise small holders, the fact that their father was a large owner will not deprive the former of their heritage , if it is less than the permissiblesee no conflict between s. 10-A and 19B. Assuming some inconsistency, primacy goes to s. 19B which effectuates the primary object. It is settled law that Courts should favour an interpretation that promotes the general purpose of an Act rather than one that does not.Counsel for the respondents adopted the arguments which found favour with the High Court and pressed two points. The scheme of the Act, according to the learned Judges, was to see that no one held in excess of the permissible area and since by the gift to the son or wife the latter had only lands within permissible limits, there was no frustration of the policy of the law This reasoning is repugnant to the basic scheme because the surplus pool will be adversely affected if gifts and other transfers which will skim off surplus were to be allowed. Indeed, the flaw in the High Courts argument is that if it were allowed to prevail, there will be no surplus land at all, every large holder being free to screen his surplus in the names of his with and kin or servants or reliable friends, by going through alienatory exercises. A legislation which has provided for ignoring decrees diminishing surplus lands and has otherwise prevented the escape of excess area by voluntary transfers, cannot conceivably be intended to permit inheritedsecond argument which appealed to the High Court is a little curious, and somewhat difficult to follow . Section 19-B directs the owner who, by inheritance, comes to own an excess area, to make a declaration of his lands within a prescribed time. This does rot mean that the time lag is statutorily given for executing gifts and transfers to def eat the law itself. Such a conclusion would be obviously absurd. What is intended is to give some time to the, heir to ascertain the assets he has inherited, make the choice of his reserved area which he likes to keep and make the necessary declaration. A processual facility cannot be converted into an opportunity to pervert and to thwart the substantive object of the law. After all, courts, faced with special case situations, have creatively to interpretfeel that when economic legislation in the implementation of Part lV of the Constitution strikes new ground and takes liberties with old jurisprudence, there looms an interpretation problem of some dimensions which Indian jurists will have to tackle. The genre of agrarian reform laws, with special constitutional status, as it were, warrants interpretative skills which will stifle evasive attempts, specially by way of gifts and bequests and suspect transfers. Here ss. 10-A, 19-A and 19B, inter alia, strike at these tactics.
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Sudhakar Baburao Nangnure Vs. Noreshwar Raghunathrao Shende
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Kurian Joseph, J. Civil Appeal Nos. 16122-16130 of 2017 [@ SLP (C) Nos. 21046-21054 OF 2017] 1. Leave granted. 2. The appellants approached this Court, aggrieved by a common interim order in three writ petitions, viz., Writ Petition Nos. 8859 of 2016, 8860 of 2016 and 9291 of 2016. The interim order dated 02.09.2016 reads as follows :-1. We have heard learned Senior Counsel Mr. Dada and Mr. Jahagirdar, appearing for the petitioner in Writ Petition Nos. 8860 and 8859 of 2016 respectively, Mr. Anturkar for respondent no.1 and the learned AGP for the State. During the course of hearing of these petitions at admission stage, learned Senior Counsel Mr. Dada appearing for the petitioner placed reliance on the following judgments :- (a) P. Chitharanja Menon and ors. v. A. Balakrishnan and ors. [AIR 1977 SC 1720]. (b) Roshan Lal and Ors. v. International Airport Authority of India and ors. [AIR 1981 SC 597]. (c) Amarjeet Singh and ors. v. Devi Ratan and ors. [(2010)1 SCC 417] . 2. Learned Senior Counsel appearing for the petitioner submits that without challenging the promotion of the petitioner, the respondent no.1 challenged the seniority list at a belated stage. The petitioner is now occupying the post of Director, Town Planning. There was delay in filing Original Application, which was condoned arbitrarily. A separate petition is filed against the order of condonation of delay i.e. Writ Petition No. 8859 of 2016. 3. Learned Senior Counsel appearing for the respondent no.1 submits that the petitioner had no right to get promotion and, therefore, the promotion granted to the petitioner was void ab initio. The respondent no.1 rightly challenged the seniority list. In the facts, it was not obligatory on the part of the respondent no.1 to challenge the promotion of the petitioner. Learned counsel for respondent no.1 placed reliance on the following judgments :- (a) P. V. George and ors. v. State of Kerala and ors. [(2007)3 SCC 557]. (b) S. Panneer Selvam and ors. v. State of Tamil Nadu and ors.[(2015) 10 SCC 292] . 4. Learned AGP appearing for the State submitted that State has also challenged the order passed by the Tribunal as the said order would create several problems, difficulties in the State administration and would affect the services of employees. 5. Learned Senior Counsel Mr. Jahagirdar, raised issues relating to order of condonation of delay passed by the Tribunal. 6. Issue notice to the respondents, returnable after six weeks. 7. Learned counsel appearing for the respective respondents waive notice. 8. Endevour would be made to decide the matters finally at the admission stage. Parties may file affidavit, rejoinder prior to the next date of hearing. 9. In the meanwhile, we direct that the parties shall maintain status quo as on today in respect of the promotional post occupied by the petitioner - Noreshwar Raghunathrao Shende.3. The Special Leave Petitions against the said interim order were disposed of by this Court by order dated 06.03.2017, which reads as follows :-"Delay condoned. The petitioner is before this Court, aggrieved by the interim order dated 2.9.2016. The issue pertains to the appointment to the post of Director of Town Planning, Maharashtra. It is submitted that the petitioner has only short period left in service. Be that as it may, since the High Court has passed the interim order to maintain status quo, we do not think it appropriate to pass any order, since the writ petitions are pending before the High Court. Therefore, we dispose of these special leave petitions with a request to the High Court to dispose of all the three writ petitions i.e. W.P. Nos.8859, 8860 and 9291 of 2016 expeditiously and in any case within a period of two months from the date of production of a copy of this order by the petitioner before the High Court. Pending application(s), if any, shall stand disposed of."4. The respondents filed Review Petitions against the above order dated 06.03.2017, which were dismissed by order dated 19.04.2017. The order reads as follows :-"We have perused the Review Petitions and record of the Special Leave Petitions and are convinced that the order, of which review has been sought, does not suffer from any error apparent warranting its reconsideration. The Review Petitions are, accordingly, dismissed. Pending Interlocutory Applications, if any, stand disposed of.5. Even thereafter, according to the learned senior counsel appearing for the appellants, for one reason or the other, the matters were not being finally heard. We do not propose to express any opinion as to why the matters were not finally heard, except taking note of the fact, at the risk of redundancy, that the interim order has been passed on 02.09.2016 and also taking note of the serious contentions raised by the parties, this Court had requested the High Court to dispose of the writ petitions within two months. 6. It is the submission of the learned senior counsel that on account of the conduct of the respondents, the cases are being adjourned before the High Court, apparently to delay the disposal of the cases. The learned senior counsel appearing for the respondents further submits that the respondents were always ready for final hearing and there was nothing on their behalf towards the delay. 7. Be that as it may, having regard to the seriousness of the matter and having regard to the fact that the writ petitions are still pending before the High Court, we are of the view that the matters need to be disposed of. As agreed by the learned senior counsel appearing on both sides, the parties will appear before the High Court on 31.10.2017, on which date, the writ petitions will be posted as the first item in the High Court.
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0[ds]5. Even thereafter, according to the learned senior counsel appearing for the appellants, for one reason or the other, the matters were not being finally heard. We do not propose to express any opinion as to why the matters were not finally heard, except taking note of the fact, at the risk of redundancy, that the interim order has been passed on 02.09.2016 and also taking note of the serious contentions raised by the parties, this Court had requested the High Court to dispose of the writ petitions within two months.Be that as it may, having regard to the seriousness of the matter and having regard to the fact that the writ petitions are still pending before the High Court, we are of the view that the matters need to be disposed of. As agreed by the learned senior counsel appearing on both sides, the parties will appear before the High Court on 31.10.2017, on which date, the writ petitions will be posted as the first item in the High
| 0 | 1,122 | 189 |
### 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:
Kurian Joseph, J. Civil Appeal Nos. 16122-16130 of 2017 [@ SLP (C) Nos. 21046-21054 OF 2017] 1. Leave granted. 2. The appellants approached this Court, aggrieved by a common interim order in three writ petitions, viz., Writ Petition Nos. 8859 of 2016, 8860 of 2016 and 9291 of 2016. The interim order dated 02.09.2016 reads as follows :-1. We have heard learned Senior Counsel Mr. Dada and Mr. Jahagirdar, appearing for the petitioner in Writ Petition Nos. 8860 and 8859 of 2016 respectively, Mr. Anturkar for respondent no.1 and the learned AGP for the State. During the course of hearing of these petitions at admission stage, learned Senior Counsel Mr. Dada appearing for the petitioner placed reliance on the following judgments :- (a) P. Chitharanja Menon and ors. v. A. Balakrishnan and ors. [AIR 1977 SC 1720]. (b) Roshan Lal and Ors. v. International Airport Authority of India and ors. [AIR 1981 SC 597]. (c) Amarjeet Singh and ors. v. Devi Ratan and ors. [(2010)1 SCC 417] . 2. Learned Senior Counsel appearing for the petitioner submits that without challenging the promotion of the petitioner, the respondent no.1 challenged the seniority list at a belated stage. The petitioner is now occupying the post of Director, Town Planning. There was delay in filing Original Application, which was condoned arbitrarily. A separate petition is filed against the order of condonation of delay i.e. Writ Petition No. 8859 of 2016. 3. Learned Senior Counsel appearing for the respondent no.1 submits that the petitioner had no right to get promotion and, therefore, the promotion granted to the petitioner was void ab initio. The respondent no.1 rightly challenged the seniority list. In the facts, it was not obligatory on the part of the respondent no.1 to challenge the promotion of the petitioner. Learned counsel for respondent no.1 placed reliance on the following judgments :- (a) P. V. George and ors. v. State of Kerala and ors. [(2007)3 SCC 557]. (b) S. Panneer Selvam and ors. v. State of Tamil Nadu and ors.[(2015) 10 SCC 292] . 4. Learned AGP appearing for the State submitted that State has also challenged the order passed by the Tribunal as the said order would create several problems, difficulties in the State administration and would affect the services of employees. 5. Learned Senior Counsel Mr. Jahagirdar, raised issues relating to order of condonation of delay passed by the Tribunal. 6. Issue notice to the respondents, returnable after six weeks. 7. Learned counsel appearing for the respective respondents waive notice. 8. Endevour would be made to decide the matters finally at the admission stage. Parties may file affidavit, rejoinder prior to the next date of hearing. 9. In the meanwhile, we direct that the parties shall maintain status quo as on today in respect of the promotional post occupied by the petitioner - Noreshwar Raghunathrao Shende.3. The Special Leave Petitions against the said interim order were disposed of by this Court by order dated 06.03.2017, which reads as follows :-"Delay condoned. The petitioner is before this Court, aggrieved by the interim order dated 2.9.2016. The issue pertains to the appointment to the post of Director of Town Planning, Maharashtra. It is submitted that the petitioner has only short period left in service. Be that as it may, since the High Court has passed the interim order to maintain status quo, we do not think it appropriate to pass any order, since the writ petitions are pending before the High Court. Therefore, we dispose of these special leave petitions with a request to the High Court to dispose of all the three writ petitions i.e. W.P. Nos.8859, 8860 and 9291 of 2016 expeditiously and in any case within a period of two months from the date of production of a copy of this order by the petitioner before the High Court. Pending application(s), if any, shall stand disposed of."4. The respondents filed Review Petitions against the above order dated 06.03.2017, which were dismissed by order dated 19.04.2017. The order reads as follows :-"We have perused the Review Petitions and record of the Special Leave Petitions and are convinced that the order, of which review has been sought, does not suffer from any error apparent warranting its reconsideration. The Review Petitions are, accordingly, dismissed. Pending Interlocutory Applications, if any, stand disposed of.5. Even thereafter, according to the learned senior counsel appearing for the appellants, for one reason or the other, the matters were not being finally heard. We do not propose to express any opinion as to why the matters were not finally heard, except taking note of the fact, at the risk of redundancy, that the interim order has been passed on 02.09.2016 and also taking note of the serious contentions raised by the parties, this Court had requested the High Court to dispose of the writ petitions within two months. 6. It is the submission of the learned senior counsel that on account of the conduct of the respondents, the cases are being adjourned before the High Court, apparently to delay the disposal of the cases. The learned senior counsel appearing for the respondents further submits that the respondents were always ready for final hearing and there was nothing on their behalf towards the delay. 7. Be that as it may, having regard to the seriousness of the matter and having regard to the fact that the writ petitions are still pending before the High Court, we are of the view that the matters need to be disposed of. As agreed by the learned senior counsel appearing on both sides, the parties will appear before the High Court on 31.10.2017, on which date, the writ petitions will be posted as the first item in the High Court.
### Response:
0
### Explanation:
5. Even thereafter, according to the learned senior counsel appearing for the appellants, for one reason or the other, the matters were not being finally heard. We do not propose to express any opinion as to why the matters were not finally heard, except taking note of the fact, at the risk of redundancy, that the interim order has been passed on 02.09.2016 and also taking note of the serious contentions raised by the parties, this Court had requested the High Court to dispose of the writ petitions within two months.Be that as it may, having regard to the seriousness of the matter and having regard to the fact that the writ petitions are still pending before the High Court, we are of the view that the matters need to be disposed of. As agreed by the learned senior counsel appearing on both sides, the parties will appear before the High Court on 31.10.2017, on which date, the writ petitions will be posted as the first item in the High
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COMMISSIONER OF CENTRAL EXCISE BELGAUM Vs. M/S. VASAVADATTA CEMENTS LTD
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of removal? Obviously, any input service given for clearance of the final product ?from the place of removal? and tax paid thereon the CENVAT credit has to be given. The question is from the place of removal up to what place. The assessees had claimed the tax paid on the transportation of final products from the place of removal (i.e. the place of manufacture) to either the place to their respective depots or transport upto the place of the customers, if from the place of removal the goods were directly delivered at customers place. It is made clear that only first set of transportation from the place of removal was claimed. To put it otherwise, in those cases where the tax paid on transportation on the goods from the place of removal upto the place of depot only that was claimed and if there was any such tax again paid from the place of depot to the place of customers, the CENVAT credit thereof was not claimed and there is no dispute about it. 5. The aforesaid approach of the Full Bench of the CESTAT, as affirmed by the High Court, appears to be perfectly correct and we do not find any error therein. For the sake of convenience, we would like to reproduce the following discussion contained in the judgment of the High Court.?30. The definition of input service contains both the word means and includes, but not means and includes. The portion of the definition to which the word means applies has to be construed restrictively as it is exhaustive. However, the portion of the definition to which the word includes applies has to be construed liberally as it is extensive. The exhaustive portion of the definition of input service deals with service used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products. It also includes clearance of final products from the place of removal. Therefore, services received or rendered by the manufacturer from the place of removal till it reaches its destination falls within the definition of input service. What are the services that normally a manufacturer would render to a customer from the place of removal? They may be packing, loading, unloading, transportation, delivery, etc. Though the word transportation is not specifically used in the said section in the context in which the phrase clearance of final products from the place of removal is used, it includes the transportation charges. Because, after the final products has reached the place of removal, to clear the final products nothing more needs to be done, except transporting the said final products to the ultimate destination i.e. the customers/buyer of the said product, apart from attending to certain ancillary services as mentioned above which ensures proper delivery of the finished product upto the customer. Therefore, all such services rendered by the manufacturer are included in the definition of input service. However, as the legislature has chosen to use the word means in this portion of the definition, it has to be construed strictly and in a restrictive manner. After defining the input service used by the manufacturer in a restrictive manner, in the later portion of the definition, the legislature has used the word includes. Therefore, the later portion of the definition has to be construed liberally. Specifically what are the services which fall within the definition of input service has been clearly set out in that portion of the definition. Thereafter, the words activities relating to business - an omni-bus phrase is used to expand the meaning of the word input service. However, after using the omni-bus phrase, examples are given. It also includes transportation. The words used are (a) inward transportation of inputs or capital goods (b) outward transportation upto the place of removal. While dealing with inward transportation, they have specifically used the words inputs or capital goods. But, while dealing with outward transportation those two words are conspicuously missing. The reason being, after inward transportation of inputs or capital goods into the factory premises, if a final product emerges, that final product has to be transported from the factory premises till the godown before it is removed for being delivered to the customer. Therefore, input service includes not only the inward transportation of inputs or capital goods but also includes outward transportation of the final product upto the place of removal. Therefore, in the later portion of the definition, an outer limit is prescribed for outward transportation, i.e., up to the place of removal.6. As mentioned above, the expression used in the aforesaid Rule is ?from the place of removal?. It has to be from the place of removal upto a certain point. Therefore, tax paid on the transportation of the final product from the place of removal upto the first point, whether it is depot or the customer, has to be allowed. 7. Our view gets support from the amendment which has been carried out by the rule making authority w.e.f. 01.04.2008 vide Notification No. 10/2008CE(NT) dated 01.03.2008 whereby the aforesaid expression ?from the place of removal? is substituted b ?upto the place of removal?. Thus from 01.04.2008, with the aforesaid amendment, the CENVAT credit is available only upto the place of removal whereas as per the amended Rule from the place of removal which has to be upto either the place of depot or the place of customer, as the case may be. This aspect has also been noted by the High Court in the impugned judgment in the following manner:?However, the interpretation placed by us on the words clearance of final products from the place of removal and the subsequent amendment by Notification 10/2008 CE(NT) dated 1.03.2008 substituting the word from in the said phrase in place of upto makes it clear that transportation charges were included in the phrase clearance from the place of removal upto the date of the said substitution and it cannot be included within the phrase activities relating to business.?7.
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1[ds]The aforesaid approach of the Full Bench of the CESTAT, as affirmed by the High Court, appears to be perfectly correct and we do not find any errormentioned above, the expression used in the aforesaid Rule is?from the place of removal?.It has to be from the place of removal upto a certain point. Therefore, tax paid on the transportation of the final product from the place of removal upto the first point, whether it is depot or the customer, has to beview gets support from the amendment which has been carried out by the rule making authority w.e.f. 01.04.2008 vide Notification No. 10/2008CE(NT) dated 01.03.2008 whereby the aforesaid expression?from the place of removal?is substituted b?upto the place of removal?.Thus from 01.04.2008, with the aforesaid amendment, the CENVAT credit is available only upto the place of removal whereas as per the amended Rule from the place of removal which has to be upto either the place of depot or the place of customer, as the case mayfind that the CESTAT had rejected the appeal of the appellant on the ground that there is a delay of 85 days and this order has been upheld by the High Court as well. Otherwise, we find that the legal issue raised in this appeal has been decided by the same Bench of the Karnataka High Court in favour of the assessee and that order has been upheld by by this Bench in the above matters i.e. Commissioner of Central Excise Belgaum Versus M/S. Vasavadatta Cements Ltd.(Civil Appeal No(S). 11710/2016 & other connected matters) preferred by the Department. For these reasons, we condone the delay in filing the appeal before the CESTAT. We find that the appellant is also entitled to the benefit of the judgment of this Court.
| 1 | 2,043 | 340 |
### 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:
of removal? Obviously, any input service given for clearance of the final product ?from the place of removal? and tax paid thereon the CENVAT credit has to be given. The question is from the place of removal up to what place. The assessees had claimed the tax paid on the transportation of final products from the place of removal (i.e. the place of manufacture) to either the place to their respective depots or transport upto the place of the customers, if from the place of removal the goods were directly delivered at customers place. It is made clear that only first set of transportation from the place of removal was claimed. To put it otherwise, in those cases where the tax paid on transportation on the goods from the place of removal upto the place of depot only that was claimed and if there was any such tax again paid from the place of depot to the place of customers, the CENVAT credit thereof was not claimed and there is no dispute about it. 5. The aforesaid approach of the Full Bench of the CESTAT, as affirmed by the High Court, appears to be perfectly correct and we do not find any error therein. For the sake of convenience, we would like to reproduce the following discussion contained in the judgment of the High Court.?30. The definition of input service contains both the word means and includes, but not means and includes. The portion of the definition to which the word means applies has to be construed restrictively as it is exhaustive. However, the portion of the definition to which the word includes applies has to be construed liberally as it is extensive. The exhaustive portion of the definition of input service deals with service used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products. It also includes clearance of final products from the place of removal. Therefore, services received or rendered by the manufacturer from the place of removal till it reaches its destination falls within the definition of input service. What are the services that normally a manufacturer would render to a customer from the place of removal? They may be packing, loading, unloading, transportation, delivery, etc. Though the word transportation is not specifically used in the said section in the context in which the phrase clearance of final products from the place of removal is used, it includes the transportation charges. Because, after the final products has reached the place of removal, to clear the final products nothing more needs to be done, except transporting the said final products to the ultimate destination i.e. the customers/buyer of the said product, apart from attending to certain ancillary services as mentioned above which ensures proper delivery of the finished product upto the customer. Therefore, all such services rendered by the manufacturer are included in the definition of input service. However, as the legislature has chosen to use the word means in this portion of the definition, it has to be construed strictly and in a restrictive manner. After defining the input service used by the manufacturer in a restrictive manner, in the later portion of the definition, the legislature has used the word includes. Therefore, the later portion of the definition has to be construed liberally. Specifically what are the services which fall within the definition of input service has been clearly set out in that portion of the definition. Thereafter, the words activities relating to business - an omni-bus phrase is used to expand the meaning of the word input service. However, after using the omni-bus phrase, examples are given. It also includes transportation. The words used are (a) inward transportation of inputs or capital goods (b) outward transportation upto the place of removal. While dealing with inward transportation, they have specifically used the words inputs or capital goods. But, while dealing with outward transportation those two words are conspicuously missing. The reason being, after inward transportation of inputs or capital goods into the factory premises, if a final product emerges, that final product has to be transported from the factory premises till the godown before it is removed for being delivered to the customer. Therefore, input service includes not only the inward transportation of inputs or capital goods but also includes outward transportation of the final product upto the place of removal. Therefore, in the later portion of the definition, an outer limit is prescribed for outward transportation, i.e., up to the place of removal.6. As mentioned above, the expression used in the aforesaid Rule is ?from the place of removal?. It has to be from the place of removal upto a certain point. Therefore, tax paid on the transportation of the final product from the place of removal upto the first point, whether it is depot or the customer, has to be allowed. 7. Our view gets support from the amendment which has been carried out by the rule making authority w.e.f. 01.04.2008 vide Notification No. 10/2008CE(NT) dated 01.03.2008 whereby the aforesaid expression ?from the place of removal? is substituted b ?upto the place of removal?. Thus from 01.04.2008, with the aforesaid amendment, the CENVAT credit is available only upto the place of removal whereas as per the amended Rule from the place of removal which has to be upto either the place of depot or the place of customer, as the case may be. This aspect has also been noted by the High Court in the impugned judgment in the following manner:?However, the interpretation placed by us on the words clearance of final products from the place of removal and the subsequent amendment by Notification 10/2008 CE(NT) dated 1.03.2008 substituting the word from in the said phrase in place of upto makes it clear that transportation charges were included in the phrase clearance from the place of removal upto the date of the said substitution and it cannot be included within the phrase activities relating to business.?7.
### Response:
1
### Explanation:
The aforesaid approach of the Full Bench of the CESTAT, as affirmed by the High Court, appears to be perfectly correct and we do not find any errormentioned above, the expression used in the aforesaid Rule is?from the place of removal?.It has to be from the place of removal upto a certain point. Therefore, tax paid on the transportation of the final product from the place of removal upto the first point, whether it is depot or the customer, has to beview gets support from the amendment which has been carried out by the rule making authority w.e.f. 01.04.2008 vide Notification No. 10/2008CE(NT) dated 01.03.2008 whereby the aforesaid expression?from the place of removal?is substituted b?upto the place of removal?.Thus from 01.04.2008, with the aforesaid amendment, the CENVAT credit is available only upto the place of removal whereas as per the amended Rule from the place of removal which has to be upto either the place of depot or the place of customer, as the case mayfind that the CESTAT had rejected the appeal of the appellant on the ground that there is a delay of 85 days and this order has been upheld by the High Court as well. Otherwise, we find that the legal issue raised in this appeal has been decided by the same Bench of the Karnataka High Court in favour of the assessee and that order has been upheld by by this Bench in the above matters i.e. Commissioner of Central Excise Belgaum Versus M/S. Vasavadatta Cements Ltd.(Civil Appeal No(S). 11710/2016 & other connected matters) preferred by the Department. For these reasons, we condone the delay in filing the appeal before the CESTAT. We find that the appellant is also entitled to the benefit of the judgment of this Court.
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Pashupati Nath Singh Vs. Harihar Prasad Singh
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chosen to fill a seat in the Legislature of a State unless he-(a) is a citizen of India, and makes and subscribes before some person authorized in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule."10. The form referred to reads as under :-"Form of oath or affirmation to he made by a candidate of election to the Legislature of a State -" "I, A. B., having been nominated as a candidate to fill a seat in the Legislative Assembly (or Legislative Council), do swear in the name of God solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established and that I will uphold the sovereignty and integrity of India.".11. The words having been nominated" in this form clearly show that the oath or affirmation cannot be taken or made by a candidate before he has been nominated as a candidate. Further, it is clear that none of the sections from Section 30 to Section 36 require that this oath should accompany the nomination paper. No reference has been made to the form of oath in Section 33 or Section 35, although in Section 33 it is provided that in certain cases the nomination paper should be accompanied by a declaration or by a certificate issued by the Election Commission. In this case it is common ground that no oath or affirmation was attached to the nomination paper or was filed before the date fixed for the scrutiny.12. Mr. Gokhale, who appears for the petitioner, contends that on objection being taken under S. 36 (2) that the petitioner had not made and subscribed an oath or affirmation according to the form set out above, he was entitled to make and subscribe the oath or affirmation immediately before the objection was considered by the Returning Officer. He says that as soon as a candidate takes the oath or makes and subscribes the oath or affirmation he would become qualified within the terms of Art. 173 of the Constitution, and this qualification would exist "on the date fixed for the scrutiny" because the date of scrutiny of nomination paper - in this cave January 21, 1967- would not have passed away by the time the oath or affirmation is taken or subscribed.13. It seems to us that the expression on the date fixed for scrutiny" in S. 36 (a) means "on the whole of the day on which the scrutiny of nomination has to take place". In other words, the qualification must exist from the earliest moment of the day of scrutiny. It will be noticed that on this date the Returning Officer has to decide the objections and the objections have to be made by the other candidates after examining the nomination papers and in the light of S. 36 (2) of the Act and other provisions.On the date of the scrutiny the other candidates should be in a position to raise all possible objections before the scrutiny of a particular nomination paper starts In a particular case, an objection may be taken to the form of the oath, the form of the oath may have been modified or the oath may not have been sworn before the person authorised in this behalf by the Election Commission. It is not necessary under Art. 173 that the person authorised by the Election Commission should be the Returning Officer.14. In Paynter v. James, (1866-67) LR 2 C. P. 348, Bovill, C. J. quoted, with approval, the passage, from the judgment of Tindal, C. J. in Regina v. Humphery, (1939) 10 Ad and E 335 in which the following occurs :........We hold it therefore to be unnecessary to refer to instances of the legal meaning of the word upon which, in different cases, may undoubtedly either mean before the act done to which it relates, or simultaneously with the act done, or after the act done, according as reason and good sense require the interpretation, with reference to the context and the subject matter of the enactment."15. Bovill, C. J., observed that"that is a very clear statement of the various meanings of the word "on" or "upon"."16. In this connection it must also be borne in mind that law disregards, as far as possible, fractions of the day. It would lead to grant confusion if it were held that a candidate would be entitled to qualify for being chosen to fill a seat till the very end of the date fixed for scrutiny of nominations. If the learned Counsel for the petitioner is right, the candidate could ask the Returning Officer to wait till 11.55 p. m. on the date fixed for the scrutiny to enable him to take the oath.17. Reference was also made to Form 2-B in the Conduct of Election Rules, 1961. It was pointed out that in this form there is no place where it can be stated by the candidate that he had taken the requisite oath or affirmation. But, this in our view does not mean that the oath or affirmation can be taken and subscribed on the date fixed for scrutiny. It seems to us that the nomination paper does not provide for the statement about the oath because the oath or affirmation has to be taken after a candidate has been nominated.18. Our attention was invited to an unreported decision of the Patna High Court in Shiva Shankar Kanodia v. Kapilded Narain Singh, Election Appeal No. 4 of 1965, D/- 22-9-1965 (Pat). That decision proceeded on the basis that"one can be said to be so nominated only when, after scrutiny of the nomination papers, the Returning Officer finds him to be validly nominated, as provided under Section 36 (8) of the Representation of the People Art, 1951."With respect, the High Court proceeded on a wrong basis. The form of oath does not say having been validly nominated" but only "having been nominated."
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0[ds]17. Reference was also made to Form 2-B in the Conduct of Election Rules, 1961. It was pointed out that in this form there is no place where it can be stated by the candidate that he had taken the requisite oath or affirmation. But, this in our view does not mean that the oath or affirmation can be taken and subscribed on the date fixed for scrutiny. It seems to us that the nomination paper does not provide for the statement about the oath because the oath or affirmation has to be taken after a candidate has been nominated.18. Our attention was invited to an unreported decision of the Patna High Court in Shiva Shankar Kanodia v. Kapilded Narain Singh, Election Appeal No. 4 of 1965, D/- 22-9-1965 (Pat). That decision proceeded on the basis that"one can be said to be so nominated only when, after scrutiny of the nomination papers, the Returning Officer finds him to be validly nominated, as provided under Section 36 (8) of the Representation of the People Art, 1951."With respect, the High Court proceeded on a wrong basis. The form of oath does not say having been validly nominated" but only "having been nominated."
| 0 | 2,511 | 234 |
### 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:
chosen to fill a seat in the Legislature of a State unless he-(a) is a citizen of India, and makes and subscribes before some person authorized in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule."10. The form referred to reads as under :-"Form of oath or affirmation to he made by a candidate of election to the Legislature of a State -" "I, A. B., having been nominated as a candidate to fill a seat in the Legislative Assembly (or Legislative Council), do swear in the name of God solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established and that I will uphold the sovereignty and integrity of India.".11. The words having been nominated" in this form clearly show that the oath or affirmation cannot be taken or made by a candidate before he has been nominated as a candidate. Further, it is clear that none of the sections from Section 30 to Section 36 require that this oath should accompany the nomination paper. No reference has been made to the form of oath in Section 33 or Section 35, although in Section 33 it is provided that in certain cases the nomination paper should be accompanied by a declaration or by a certificate issued by the Election Commission. In this case it is common ground that no oath or affirmation was attached to the nomination paper or was filed before the date fixed for the scrutiny.12. Mr. Gokhale, who appears for the petitioner, contends that on objection being taken under S. 36 (2) that the petitioner had not made and subscribed an oath or affirmation according to the form set out above, he was entitled to make and subscribe the oath or affirmation immediately before the objection was considered by the Returning Officer. He says that as soon as a candidate takes the oath or makes and subscribes the oath or affirmation he would become qualified within the terms of Art. 173 of the Constitution, and this qualification would exist "on the date fixed for the scrutiny" because the date of scrutiny of nomination paper - in this cave January 21, 1967- would not have passed away by the time the oath or affirmation is taken or subscribed.13. It seems to us that the expression on the date fixed for scrutiny" in S. 36 (a) means "on the whole of the day on which the scrutiny of nomination has to take place". In other words, the qualification must exist from the earliest moment of the day of scrutiny. It will be noticed that on this date the Returning Officer has to decide the objections and the objections have to be made by the other candidates after examining the nomination papers and in the light of S. 36 (2) of the Act and other provisions.On the date of the scrutiny the other candidates should be in a position to raise all possible objections before the scrutiny of a particular nomination paper starts In a particular case, an objection may be taken to the form of the oath, the form of the oath may have been modified or the oath may not have been sworn before the person authorised in this behalf by the Election Commission. It is not necessary under Art. 173 that the person authorised by the Election Commission should be the Returning Officer.14. In Paynter v. James, (1866-67) LR 2 C. P. 348, Bovill, C. J. quoted, with approval, the passage, from the judgment of Tindal, C. J. in Regina v. Humphery, (1939) 10 Ad and E 335 in which the following occurs :........We hold it therefore to be unnecessary to refer to instances of the legal meaning of the word upon which, in different cases, may undoubtedly either mean before the act done to which it relates, or simultaneously with the act done, or after the act done, according as reason and good sense require the interpretation, with reference to the context and the subject matter of the enactment."15. Bovill, C. J., observed that"that is a very clear statement of the various meanings of the word "on" or "upon"."16. In this connection it must also be borne in mind that law disregards, as far as possible, fractions of the day. It would lead to grant confusion if it were held that a candidate would be entitled to qualify for being chosen to fill a seat till the very end of the date fixed for scrutiny of nominations. If the learned Counsel for the petitioner is right, the candidate could ask the Returning Officer to wait till 11.55 p. m. on the date fixed for the scrutiny to enable him to take the oath.17. Reference was also made to Form 2-B in the Conduct of Election Rules, 1961. It was pointed out that in this form there is no place where it can be stated by the candidate that he had taken the requisite oath or affirmation. But, this in our view does not mean that the oath or affirmation can be taken and subscribed on the date fixed for scrutiny. It seems to us that the nomination paper does not provide for the statement about the oath because the oath or affirmation has to be taken after a candidate has been nominated.18. Our attention was invited to an unreported decision of the Patna High Court in Shiva Shankar Kanodia v. Kapilded Narain Singh, Election Appeal No. 4 of 1965, D/- 22-9-1965 (Pat). That decision proceeded on the basis that"one can be said to be so nominated only when, after scrutiny of the nomination papers, the Returning Officer finds him to be validly nominated, as provided under Section 36 (8) of the Representation of the People Art, 1951."With respect, the High Court proceeded on a wrong basis. The form of oath does not say having been validly nominated" but only "having been nominated."
### Response:
0
### Explanation:
17. Reference was also made to Form 2-B in the Conduct of Election Rules, 1961. It was pointed out that in this form there is no place where it can be stated by the candidate that he had taken the requisite oath or affirmation. But, this in our view does not mean that the oath or affirmation can be taken and subscribed on the date fixed for scrutiny. It seems to us that the nomination paper does not provide for the statement about the oath because the oath or affirmation has to be taken after a candidate has been nominated.18. Our attention was invited to an unreported decision of the Patna High Court in Shiva Shankar Kanodia v. Kapilded Narain Singh, Election Appeal No. 4 of 1965, D/- 22-9-1965 (Pat). That decision proceeded on the basis that"one can be said to be so nominated only when, after scrutiny of the nomination papers, the Returning Officer finds him to be validly nominated, as provided under Section 36 (8) of the Representation of the People Art, 1951."With respect, the High Court proceeded on a wrong basis. The form of oath does not say having been validly nominated" but only "having been nominated."
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Union of India & Another Vs. Association of Unified Telecom Service Providers of India & Others
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07.07.2006 has been passed and against whom no appeal was filed by the Union of India challenging the order dated 07.07.2006, the order dated 07.07.2006 of the Tribunal could not be re-opened because of the principle of res judicata. In the opening paragraph of the order dated 07.07.2006, the Tribunal has stated: “By this batch of petitions the Association of Unified Telecom Service Providers of India, Cellular Operators Association of India and some individual Telecommunication Service Providers are questioning the validity of the definition of Adjusted Gross Revenue (AGR) in the licenses given to various telecom service providers.” 42. Finally, in the operative part of the order dated 07.07.2006, the Tribunal has directed as follows: “Apart from the principal question whether the State Government can include the gross income of the licensee from non-licensed activity in the AGR; the petitioners have also challenged individually the various components of AGR as enumerated in the licence. In view of the fact we have come to the conclusion that there has not been an effective consultation with the TRAI which is mandatory under the TRAI Act, we think we should not further delve into the exercise of finding out which component of the AGR, as defined by the Government in the conditions of licence, deserves to be retained and which component which the petitioners contend is not derived from the licensed revenue of the licensee should be excluded at this stage. We think it more appropriate that the matter should be remanded to the TRAI which is the 3rd Respondent herein, before whom the Government should produce the material relied by it while rejecting TRAIs recommendation so that TRAI can consider the same and send its conclusions to this Tribunal and thereafter, this Tribunal will have the benefit of a comprehensive recommendation of the TRAI after considering the materials relied upon by the Government. While forming its conclusions the TRAI shall hear the Government as well as the licensees and consider the materials that may be placed before it by either side. In this process it is not necessary for the TRAI to hold fresh consultative proceeding unless it thinks necessary. During this proceeding before the TRAI the petitioners shall place before it their contentions in regard to the various components of AGR which they have challenged before this Tribunal and the TRAI after hearing the Government on this issue also, send its recommendations to this Tribunal preferably within three months of the receipt of this order.Further, while considering the issue now remitted to the TRAI, the TRAI will bear in mind our finding in regard to the inclusion in gross revenue of the licensee revenue derived from non-licensed activities......” 43. Thus, the Tribunal in its order dated 07.07.2006 has not just decided a dispute on the interpretation of Adjusted Gross Revenue in the license, but has decided on the validity of the definition of Adjusted Gross Revenue in the license. As we have already held, the Tribunal had no jurisdiction to decide on the validity of the terms and conditions of the license including the definition of Adjusted Gross Revenue incorporated in the license agreement. Hence, the order dated 07.07.2006 of the Tribunal in so far as it decides that revenue realized by the licensee from activities beyond the license will be excluded from Adjusted Gross Revenue dehors the definition of Adjusted Gross Revenue in the license agreement is without jurisdiction and is a nullity and the principle of res judicata will not apply. In Chandrabhai K. Bhoir and Others vs. Krishna Arjun Bhoir and Others (supra) this Court relying on Chief Justice of A.P. vs. L.V.A. Dixitulu [(1979) 2 SCC 34, Union of India vs. Pramod Gupta [(2005) 12 SCC 1] and National Institute of Technology vs. Niraj Kumar Singh [(2007) 2 SCC 481] has held: “an order passed without jurisdiction would be a nullity. It will be a coram non judice and non est in the eye of the law. Principle of res judicata would not apply to such cases”. 44. We accordingly hold that the order dated 07.07.2006 of the Tribunal was not binding on the Union of India even in those cases in which the Union of India did not file any appeal against the order dated 07.07.2006 before this Court. The last substantial question of law which we have to decide is whether the licensee can challenge the computation of Adjusted Gross Revenue and if so at what stage and on what grounds. Section 14 (a)(i) of the TRAI Act, as we have seen, provides that the Tribunal can adjudicate any dispute between the licensor and the licensee. One such dispute can be that the computation of Adjusted Gross Revenue made by the licensor and the demand raised on the basis of such computation is not in accordance with the license agreement. This dispute however can be raised by the licensee, after the license agreement has been entered into and the appropriate stage when the dispute can be raised is when a particular demand is raised on the licensee by the licensor. When such a dispute is raised against a particular demand, the Tribunal will have to go into the facts and materials on the basis of which the demand is raised and decide whether the demand is in accordance with the license agreement and in particular the definition of Adjusted Gross Revenue in the license agreement and can also interpret the terms and conditions of the license agreement. We, however, find from the order dated 07.07.2006 that instead of challenging any demands made on them, the licensees have questioned the validity of the definition of Adjusted Gross Revenue in the licenses given to them and the Tribunal has finally decided in its order dated 30.08.2007 as to what items of revenue would be part of Adjusted Gross Revenue and what items of revenue would not be part of Adjusted Gross Revenue without going into the facts and materials relating to the demand on a particular licensee.45.
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1[ds]35. Regarding the recommendations of the TRAI under Section 11(1)(a)(i) of the TRAI Act, we find that the Tribunal in its order dated 07.07.2006 has held that the opinion of the renowned expert in the accountancy that any other definition of Adjusted Gross Revenue would lead to reduction of license fee liability by way of accounting jugglery was not placed before the TRAI and as a result there was no proper and effective consultation with the TRAI and the weightage that was due to the recommendations of the TRAI was not given effect to. In our considered opinion, if the Tribunal found that there was no effective consultation with the TRAI on the opinion of the expert on accountancy, the Tribunal could have at best, if it had the jurisdiction to decide the dispute, directed the TRAI to consider the opinion of the expert on accountancy and send its recommendations to the Central Government and directed the Central Government to consider such fresh recommendations of the TRAI as provided in the provisos to section 11(1) of the TRAI Act. Instead the Tribunal has considered the recommendations of the TRAI and passed the fresh impugned order dated 30.08.2007 contrary to the very provisions of Section 11(1)(a) of the TRAI Act and the provisos thereto. At any rate, as the Central Government has already considered the fresh recommendations of the TRAI and has not accepted the same and is not agreeable to alter the definition of Adjusted Gross Revenue, the decision of the Central Government on the point was final under the first proviso and the fifth proviso to Section 11(1) of the TRAI Act, 1997.36. We may now deal with the authorities relied upon by the Tribunal and learned counsel for the parties. In Cellular Operators Association of India & Ors. v. Union of India & Ors. (supra), the Cellular Operators Association of India approached the Tribunal under Section 14 of the TRAI Act challenging the decisions of the Government permitting the fixed service providers to offer WLL with limited mobility and the recommendations of the TRAI in this regard. The Tribunal dismissed the application and the Cellular Operators filed an appeal under Section 18 of the TRAI Act before this Court. This Court held that WLL with limited mobility as recommended by the TRAI could be permitted if the question of level playing field of the Cellular Operators was duly considered and they were duly compensated but the Tribunal had not considered the relevant materials on this issue and had only arrived at a bald conclusion that the Cellular Operators have already been compensated in various ways. With these findings, this Court set aside the decision of the Tribunal and remitted the matter to the Tribunal for reconsideration with special emphasis on the question of level playing field on the basis of the materials already on record. In this decision, this Court was not called upon to consider whether a licensee having accepted the terms of the license could challenge before the Tribunal the validity of a clause in the terms of license and whether the Tribunal would have jurisdiction to decide such a challenge.37. In Delhi Science Forum and Others v. Union of India (supra) after the National Telecom Policy, 1994 was announced for inducting the private sector into basic telephone services and notice was published inviting tenders from private parties and tenders were submitted for different circles, but before licenses could be granted by the Central Government, writ petitions were filed in different High Courts as well as in this Court and all the writ petitions filed before different High Courts were transferred to this Court and heard together. The Writ Petitioners questioned the validity and propriety of the new telecom policy saying that it shall endanger the national security of the country and shall not serve the economic interest of the nation. This Court while upholding the new Telecom Policy held that the proviso to sub-section (1) of Section 4 of the Telegraph Act enables the Central Government to grant license to private bodies, but such power should be exercised on well-settled principles and norms which can satisfy the test of Article 14 of the Constitution. Thus, this is not a case like the present one, in which the licensees having accepted the terms of the license have challenged the definition of Adjusted Gross Revenue incorporated in the terms of the license.38. In State of U.P. v. Devi Dayal Singh (supra), a truck owner, Devi Dayal Singh, challenged the right of the State Government to recover by way of toll under Section 2 of the Tolls Act, 1851, an amount for the actual construction of the bridge. This Court held that Section 2 of the Tolls Act, 1851 which enables the State Government to levy toll at such rates `as it thinks fit and the only restriction is latent in the worditself. This was therefore not a case of dispute between the Government and the contractor where the contractor had challenged a stipulation of the contract. In the present case, on the other hand, the licensees had accepted the terms of the license and after having taken the benefits of the license is now trying to wriggle out from the terms of the license and in particular the definition of the Adjusted Gross Revenue.39. In Union of India v. Tata Teleservices (Mahrashtra) Ltd. (supra) cited by Mr. Srinivasan, a letter of intent was issued to Tata Teleservices and this was accepted by Tata Teleservices but ultimately the contract did not come into being and the license was not actually granted. The Union of India suffered a considerable loss because Tata Teleservices had walked out of the obligation undertaken by the acceptance of the letter of intent. The Additional Solicitor General appearing for the Union of India submitted that such a dispute would also come within the purview of Section 14 of the TRAI Act, going by the definition of licensee and the meaning given to it in the notice inviting tenders. The Tribunal held that expressionoccurring in Section 14 (a)(i) of the TRAI Act would not exclude a person who had been given a letter of intent and who had accepted the letter of intent but was trying to negotiate some further terms of common interest before a formal contract was entered into and the work was to be started. This was thus a case where this Court treated a person who had accepted the letter of intent of the licensor as a licensee, although a formal contract had not entered into. In this case this Court has not held that a licensee could dispute the validity of a term or condition which was incorporated in the license agreement.40. On the other hand, we find from the long line of decisions in Har Shankar & Ors. vs. The Deputy Excise & Taxation Commissioner & Others (supra), Government of A.P. vs. M/s Anabeshahi Wine & Distilleries Pvt. Ltd (supra), Assistant Excise Commissioner & Anr. vs. Issac Peter & Ors. (supra), State of Orissa & Ors. vs. Narain Prasad & Ors. (supra), State of M.P. & Ors. vs. KCT Drinks Ltd. (supra), State of Punjab & Anr. vs. Devans Modern Breweries Ltd. & Ors. (supra), Shyam Telelink Limited vs. Union of India (supra) and in Bharti Cellular Limited vs. Union of India & Ors. (supra), that this Court has consistently taken a view that once a licensee has accepted the terms and conditions of a license, he cannot question the validity of the terms and conditions of the license before the Court. We, therefore, hold that the TRAI and the Tribunal had no jurisdiction to decide on the validity of the definition of Adjusted Gross Revenue in the license agreement and to exclude certain items of revenue which were included in the definition of Adjusted Gross Revenue in the license agreement between the licensor and the licensee.41. The next substantial question of law which we have to decide is whether as a result of Union of India not filing an appeal against the order dated 07.07.2006 in favour of some of licensees, the order dated 07.07.2006 had not become binding on the Union of India with regard to issues which had been decided by the Tribunal in the said order dated 07.07.2006. According to the learned counsel for the licensees in whose favour order dated 07.07.2006 has been passed and against whom no appeal was filed by the Union of India challenging the order dated 07.07.2006, the order dated 07.07.2006 of the Tribunal could not be re-opened because of the principle of res judicata. In the opening paragraph of the order dated 07.07.2006, the Tribunal has stated:this batch of petitions the Association of Unified Telecom Service Providers of India, Cellular Operators Association of India and some individual Telecommunication Service Providers are questioning the validity of the definition of Adjusted Gross Revenue (AGR) in the licenses given to various telecom servicein the operative part of the order dated 07.07.2006, the Tribunal has directed as follows:from the principal question whether the State Government can include the gross income of the licensee from non-licensed activity in the AGR; the petitioners have also challenged individually the various components of AGR as enumerated in the licence. In view of the fact we have come to the conclusion that there has not been an effective consultation with the TRAI which is mandatory under the TRAI Act, we think we should not further delve into the exercise of finding out which component of the AGR, as defined by the Government in the conditions of licence, deserves to be retained and which component which the petitioners contend is not derived from the licensed revenue of the licensee should be excluded at this stage. We think it more appropriate that the matter should be remanded to the TRAI which is the 3rd Respondent herein, before whom the Government should produce the material relied by it while rejecting TRAIs recommendation so that TRAI can consider the same and send its conclusions to this Tribunal and thereafter, this Tribunal will have the benefit of a comprehensive recommendation of the TRAI after considering the materials relied upon by the Government. While forming its conclusions the TRAI shall hear the Government as well as the licensees and consider the materials that may be placed before it by either side. In this process it is not necessary for the TRAI to hold fresh consultative proceeding unless it thinks necessary. During this proceeding before the TRAI the petitioners shall place before it their contentions in regard to the various components of AGR which they have challenged before this Tribunal and the TRAI after hearing the Government on this issue also, send its recommendations to this Tribunal preferably within three months of the receipt of this order.Further, while considering the issue now remitted to the TRAI, the TRAI will bear in mind our finding in regard to the inclusion in gross revenue of the licensee revenue derived from non-licensedThus, the Tribunal in its order dated 07.07.2006 has not just decided a dispute on the interpretation of Adjusted Gross Revenue in the license, but has decided on the validity of the definition of Adjusted Gross Revenue in the license. As we have already held, the Tribunal had no jurisdiction to decide on the validity of the terms and conditions of the license including the definition of Adjusted Gross Revenue incorporated in the license agreement. Hence, the order dated 07.07.2006 of the Tribunal in so far as it decides that revenue realized by the licensee from activities beyond the license will be excluded from Adjusted Gross Revenue dehors the definition of Adjusted Gross Revenue in the license agreement is without jurisdiction and is a nullity and the principle of res judicata will not apply. In Chandrabhai K. Bhoir and Others vs. Krishna Arjun Bhoir and Others (supra) this Court relying on Chief Justice of A.P. vs. L.V.A. Dixitulu [(1979) 2 SCC 34, Union of India vs. Pramod Gupta [(2005) 12 SCC 1] and National Institute of Technology vs. Niraj Kumar Singh [(2007) 2 SCC 481] hasorder passed without jurisdiction would be a nullity. It will be a coram non judice and non est in the eye of the law. Principle of res judicata would not apply to suchaccordingly hold that the order dated 07.07.2006 of the Tribunal was not binding on the Union of India even in those cases in which the Union of India did not file any appeal against the order dated 07.07.2006 before this Court.The last substantial question of law which we have to decide is whether the licensee can challenge the computation of Adjusted Gross Revenue and if so at what stage and on what grounds. Section 14 (a)(i) of the TRAI Act, as we have seen, provides that the Tribunal can adjudicate any dispute between the licensor and the licensee. One such dispute can be that the computation of Adjusted Gross Revenue made by the licensor and the demand raised on the basis of such computation is not in accordance with the license agreement. This dispute however can be raised by the licensee, after the license agreement has been entered into and the appropriate stage when the dispute can be raised is when a particular demand is raised on the licensee by the licensor. When such a dispute is raised against a particular demand, the Tribunal will have to go into the facts and materials on the basis of which the demand is raised and decide whether the demand is in accordance with the license agreement and in particular the definition of Adjusted Gross Revenue in the license agreement and can also interpret the terms and conditions of the license agreement. We, however, find from the order dated 07.07.2006 that instead of challenging any demands made on them, the licensees have questioned the validity of the definition of Adjusted Gross Revenue in the licenses given to them and the Tribunal has finally decided in its order dated 30.08.2007 as to what items of revenue would be part of Adjusted Gross Revenue and what items of revenue would not be part of Adjusted Gross Revenue without going into the facts and materials relating to the demand on a particular licensee.
| 1 | 13,161 | 2,589 |
### 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:
07.07.2006 has been passed and against whom no appeal was filed by the Union of India challenging the order dated 07.07.2006, the order dated 07.07.2006 of the Tribunal could not be re-opened because of the principle of res judicata. In the opening paragraph of the order dated 07.07.2006, the Tribunal has stated: “By this batch of petitions the Association of Unified Telecom Service Providers of India, Cellular Operators Association of India and some individual Telecommunication Service Providers are questioning the validity of the definition of Adjusted Gross Revenue (AGR) in the licenses given to various telecom service providers.” 42. Finally, in the operative part of the order dated 07.07.2006, the Tribunal has directed as follows: “Apart from the principal question whether the State Government can include the gross income of the licensee from non-licensed activity in the AGR; the petitioners have also challenged individually the various components of AGR as enumerated in the licence. In view of the fact we have come to the conclusion that there has not been an effective consultation with the TRAI which is mandatory under the TRAI Act, we think we should not further delve into the exercise of finding out which component of the AGR, as defined by the Government in the conditions of licence, deserves to be retained and which component which the petitioners contend is not derived from the licensed revenue of the licensee should be excluded at this stage. We think it more appropriate that the matter should be remanded to the TRAI which is the 3rd Respondent herein, before whom the Government should produce the material relied by it while rejecting TRAIs recommendation so that TRAI can consider the same and send its conclusions to this Tribunal and thereafter, this Tribunal will have the benefit of a comprehensive recommendation of the TRAI after considering the materials relied upon by the Government. While forming its conclusions the TRAI shall hear the Government as well as the licensees and consider the materials that may be placed before it by either side. In this process it is not necessary for the TRAI to hold fresh consultative proceeding unless it thinks necessary. During this proceeding before the TRAI the petitioners shall place before it their contentions in regard to the various components of AGR which they have challenged before this Tribunal and the TRAI after hearing the Government on this issue also, send its recommendations to this Tribunal preferably within three months of the receipt of this order.Further, while considering the issue now remitted to the TRAI, the TRAI will bear in mind our finding in regard to the inclusion in gross revenue of the licensee revenue derived from non-licensed activities......” 43. Thus, the Tribunal in its order dated 07.07.2006 has not just decided a dispute on the interpretation of Adjusted Gross Revenue in the license, but has decided on the validity of the definition of Adjusted Gross Revenue in the license. As we have already held, the Tribunal had no jurisdiction to decide on the validity of the terms and conditions of the license including the definition of Adjusted Gross Revenue incorporated in the license agreement. Hence, the order dated 07.07.2006 of the Tribunal in so far as it decides that revenue realized by the licensee from activities beyond the license will be excluded from Adjusted Gross Revenue dehors the definition of Adjusted Gross Revenue in the license agreement is without jurisdiction and is a nullity and the principle of res judicata will not apply. In Chandrabhai K. Bhoir and Others vs. Krishna Arjun Bhoir and Others (supra) this Court relying on Chief Justice of A.P. vs. L.V.A. Dixitulu [(1979) 2 SCC 34, Union of India vs. Pramod Gupta [(2005) 12 SCC 1] and National Institute of Technology vs. Niraj Kumar Singh [(2007) 2 SCC 481] has held: “an order passed without jurisdiction would be a nullity. It will be a coram non judice and non est in the eye of the law. Principle of res judicata would not apply to such cases”. 44. We accordingly hold that the order dated 07.07.2006 of the Tribunal was not binding on the Union of India even in those cases in which the Union of India did not file any appeal against the order dated 07.07.2006 before this Court. The last substantial question of law which we have to decide is whether the licensee can challenge the computation of Adjusted Gross Revenue and if so at what stage and on what grounds. Section 14 (a)(i) of the TRAI Act, as we have seen, provides that the Tribunal can adjudicate any dispute between the licensor and the licensee. One such dispute can be that the computation of Adjusted Gross Revenue made by the licensor and the demand raised on the basis of such computation is not in accordance with the license agreement. This dispute however can be raised by the licensee, after the license agreement has been entered into and the appropriate stage when the dispute can be raised is when a particular demand is raised on the licensee by the licensor. When such a dispute is raised against a particular demand, the Tribunal will have to go into the facts and materials on the basis of which the demand is raised and decide whether the demand is in accordance with the license agreement and in particular the definition of Adjusted Gross Revenue in the license agreement and can also interpret the terms and conditions of the license agreement. We, however, find from the order dated 07.07.2006 that instead of challenging any demands made on them, the licensees have questioned the validity of the definition of Adjusted Gross Revenue in the licenses given to them and the Tribunal has finally decided in its order dated 30.08.2007 as to what items of revenue would be part of Adjusted Gross Revenue and what items of revenue would not be part of Adjusted Gross Revenue without going into the facts and materials relating to the demand on a particular licensee.45.
### Response:
1
### Explanation:
the said order dated 07.07.2006. According to the learned counsel for the licensees in whose favour order dated 07.07.2006 has been passed and against whom no appeal was filed by the Union of India challenging the order dated 07.07.2006, the order dated 07.07.2006 of the Tribunal could not be re-opened because of the principle of res judicata. In the opening paragraph of the order dated 07.07.2006, the Tribunal has stated:this batch of petitions the Association of Unified Telecom Service Providers of India, Cellular Operators Association of India and some individual Telecommunication Service Providers are questioning the validity of the definition of Adjusted Gross Revenue (AGR) in the licenses given to various telecom servicein the operative part of the order dated 07.07.2006, the Tribunal has directed as follows:from the principal question whether the State Government can include the gross income of the licensee from non-licensed activity in the AGR; the petitioners have also challenged individually the various components of AGR as enumerated in the licence. In view of the fact we have come to the conclusion that there has not been an effective consultation with the TRAI which is mandatory under the TRAI Act, we think we should not further delve into the exercise of finding out which component of the AGR, as defined by the Government in the conditions of licence, deserves to be retained and which component which the petitioners contend is not derived from the licensed revenue of the licensee should be excluded at this stage. We think it more appropriate that the matter should be remanded to the TRAI which is the 3rd Respondent herein, before whom the Government should produce the material relied by it while rejecting TRAIs recommendation so that TRAI can consider the same and send its conclusions to this Tribunal and thereafter, this Tribunal will have the benefit of a comprehensive recommendation of the TRAI after considering the materials relied upon by the Government. While forming its conclusions the TRAI shall hear the Government as well as the licensees and consider the materials that may be placed before it by either side. In this process it is not necessary for the TRAI to hold fresh consultative proceeding unless it thinks necessary. During this proceeding before the TRAI the petitioners shall place before it their contentions in regard to the various components of AGR which they have challenged before this Tribunal and the TRAI after hearing the Government on this issue also, send its recommendations to this Tribunal preferably within three months of the receipt of this order.Further, while considering the issue now remitted to the TRAI, the TRAI will bear in mind our finding in regard to the inclusion in gross revenue of the licensee revenue derived from non-licensedThus, the Tribunal in its order dated 07.07.2006 has not just decided a dispute on the interpretation of Adjusted Gross Revenue in the license, but has decided on the validity of the definition of Adjusted Gross Revenue in the license. As we have already held, the Tribunal had no jurisdiction to decide on the validity of the terms and conditions of the license including the definition of Adjusted Gross Revenue incorporated in the license agreement. Hence, the order dated 07.07.2006 of the Tribunal in so far as it decides that revenue realized by the licensee from activities beyond the license will be excluded from Adjusted Gross Revenue dehors the definition of Adjusted Gross Revenue in the license agreement is without jurisdiction and is a nullity and the principle of res judicata will not apply. In Chandrabhai K. Bhoir and Others vs. Krishna Arjun Bhoir and Others (supra) this Court relying on Chief Justice of A.P. vs. L.V.A. Dixitulu [(1979) 2 SCC 34, Union of India vs. Pramod Gupta [(2005) 12 SCC 1] and National Institute of Technology vs. Niraj Kumar Singh [(2007) 2 SCC 481] hasorder passed without jurisdiction would be a nullity. It will be a coram non judice and non est in the eye of the law. Principle of res judicata would not apply to suchaccordingly hold that the order dated 07.07.2006 of the Tribunal was not binding on the Union of India even in those cases in which the Union of India did not file any appeal against the order dated 07.07.2006 before this Court.The last substantial question of law which we have to decide is whether the licensee can challenge the computation of Adjusted Gross Revenue and if so at what stage and on what grounds. Section 14 (a)(i) of the TRAI Act, as we have seen, provides that the Tribunal can adjudicate any dispute between the licensor and the licensee. One such dispute can be that the computation of Adjusted Gross Revenue made by the licensor and the demand raised on the basis of such computation is not in accordance with the license agreement. This dispute however can be raised by the licensee, after the license agreement has been entered into and the appropriate stage when the dispute can be raised is when a particular demand is raised on the licensee by the licensor. When such a dispute is raised against a particular demand, the Tribunal will have to go into the facts and materials on the basis of which the demand is raised and decide whether the demand is in accordance with the license agreement and in particular the definition of Adjusted Gross Revenue in the license agreement and can also interpret the terms and conditions of the license agreement. We, however, find from the order dated 07.07.2006 that instead of challenging any demands made on them, the licensees have questioned the validity of the definition of Adjusted Gross Revenue in the licenses given to them and the Tribunal has finally decided in its order dated 30.08.2007 as to what items of revenue would be part of Adjusted Gross Revenue and what items of revenue would not be part of Adjusted Gross Revenue without going into the facts and materials relating to the demand on a particular licensee.
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united india insurance co. ltd., Vs. abdul rashid mattoo and others
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1. The respondents preferred a complaint before the J&K State Consumer Protection Commission complaining of deficiency in services by the appellant-Insurance Co. The case of the respondents was that their house which was insured with the appellant-Insurance Co. suffered damage on account of earthquake and inspite of the claim having been preferred, the Insurance Co. did not honour the same and kept it pending for an unreasonable length of time. Though the appellant defended itself disputing the entitlement of the respondents to any claim under the insurance policy, however the Commission found the respondents entitled to an award of damages of Rs.2,03,605/- which in the opinion of the Commission was a fair assessment of the damages suffered by the respondents house due to earthquake. The award of this amount of compensation has been upheld by the High Court in appeal. Feeling aggrieved, the Insurance Co. has filed this appeal by special leave. Having heard the learned counsel for the parties, we are satisfied that the findings that there was an earthquake and that the house of the respondents suffered damage to the tune of Rs.2,03,605/- are purely of fact based on evidence and no fault can be found therewith. However, the Commission has awarded a further sum of Rs.50,000/- to the complainant "as compensation for loss and injury, harassment physical and mental torture which he had to suffer due to ill thought action of the functionaries of the Insurance Company". The awarded amount has been directed to carry interest at the rate of 18% p.a. The learned counsel for the appellant has submitted that there was no occasion for awarding this additional sum of Rs.50,000/- and also to award interest at such a high rate. We find merit in both the submissions. Merely because the Insurance Co. resisted the claim made by the respondents and then defended itself, a finding as to physical harassment and mental torture could not have been arrived at and recorded by the Commission.
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1[ds]Having heard the learned counsel for the parties, we are satisfied that the findings that there was an earthquake and that the house of the respondents suffered damage to the tune of Rs.2,03,605/are purely of fact based on evidence and no fault can be found therewith. However, the Commission has awarded a further sum of Rs.50,000/to the complainant "as compensation for loss and injury, harassment physical and mental torture which he had to suffer due to ill thought action of the functionaries of the Insurance Company". The awarded amount has been directed to carry interest at the rate of 18% p.a. The learned counsel for the appellant has submitted that there was no occasion for awarding this additional sumand also to award interest at such a high rate. We find merit in both the submissions. Merely because the Insurance Co. resisted the claim made by the respondents and then defended itself, a finding as to physical harassment and mental torture could not have been arrived at and recorded by the Commission.
| 1 | 352 | 188 |
### 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:
1. The respondents preferred a complaint before the J&K State Consumer Protection Commission complaining of deficiency in services by the appellant-Insurance Co. The case of the respondents was that their house which was insured with the appellant-Insurance Co. suffered damage on account of earthquake and inspite of the claim having been preferred, the Insurance Co. did not honour the same and kept it pending for an unreasonable length of time. Though the appellant defended itself disputing the entitlement of the respondents to any claim under the insurance policy, however the Commission found the respondents entitled to an award of damages of Rs.2,03,605/- which in the opinion of the Commission was a fair assessment of the damages suffered by the respondents house due to earthquake. The award of this amount of compensation has been upheld by the High Court in appeal. Feeling aggrieved, the Insurance Co. has filed this appeal by special leave. Having heard the learned counsel for the parties, we are satisfied that the findings that there was an earthquake and that the house of the respondents suffered damage to the tune of Rs.2,03,605/- are purely of fact based on evidence and no fault can be found therewith. However, the Commission has awarded a further sum of Rs.50,000/- to the complainant "as compensation for loss and injury, harassment physical and mental torture which he had to suffer due to ill thought action of the functionaries of the Insurance Company". The awarded amount has been directed to carry interest at the rate of 18% p.a. The learned counsel for the appellant has submitted that there was no occasion for awarding this additional sum of Rs.50,000/- and also to award interest at such a high rate. We find merit in both the submissions. Merely because the Insurance Co. resisted the claim made by the respondents and then defended itself, a finding as to physical harassment and mental torture could not have been arrived at and recorded by the Commission.
### Response:
1
### Explanation:
Having heard the learned counsel for the parties, we are satisfied that the findings that there was an earthquake and that the house of the respondents suffered damage to the tune of Rs.2,03,605/are purely of fact based on evidence and no fault can be found therewith. However, the Commission has awarded a further sum of Rs.50,000/to the complainant "as compensation for loss and injury, harassment physical and mental torture which he had to suffer due to ill thought action of the functionaries of the Insurance Company". The awarded amount has been directed to carry interest at the rate of 18% p.a. The learned counsel for the appellant has submitted that there was no occasion for awarding this additional sumand also to award interest at such a high rate. We find merit in both the submissions. Merely because the Insurance Co. resisted the claim made by the respondents and then defended itself, a finding as to physical harassment and mental torture could not have been arrived at and recorded by the Commission.
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Associated Stone Industries (Kotah) Limited Vs. Union of India and Another
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226 of the Constitution and obtained an ad interim injunction from the High Court. The appellant alleged that thereafter it was advised to withdraw the writ petition in the High court and to file a suit in a competent civil court. On December 15, 1953, the appellant instituted a suit in the court of the District Judge of Kotah in which it prayed for a declaration that during the continuance of the grant dated May 2, 1945, the Union of Indian defendant No. 1 in the action was not entitled to recover from the appellant income-tax, super-tax or excess profit tax; it also prayed for a second declaration that the application of the Indian Income-tax Act, 1922, to the appellant during the continuance of the grant was a violation of article 295 of the constitution and therefore illegal and void. The appellant also claimed certain other reliefs the details whereof need not be set out.The suit was contested by the Union of India as also by the State of Rajasthan, the two defendants in the action. The learned District Judge who tried the suit framed as many as eleven issues and gave his findings on most of them. While dealing with issue No. 11 which raised the question of the reliefs to which the appellant was entitled, the learned district judge referred to section 113 of the Code of civil Procedure and then said :"In this case I am of the opinion that the application of the Indian Income-tax Act, 1922, is invalid so far as the plaintiff company is concerned and I have given my reasons therefor. There is no decision on the point of the honble High Court or the honble Supreme Court. The case will be submitted to the honble High Court for favour of its opinion on the point whether by virtue of the grant, exhibit A, the Indian Income-tax Act, 1922, is invalid so far as the plaintiff company is concerned during the continuance of the grant."5. The case then came to the High Court of Rajasthan on the reference made by the learned District judge of Kotah and the point submitted for the opinion of the High Court was stated in these terms :"Whether by virtue of the grant, exhibit A, the Indian Income-tax Act, 1922, is invalid so far as the plaintiff company is concerned during the continuance of the grant."6. The High Court expressed a doubt whether the reference was competent, but it withdrew the suit under article 228 of the constitution on the ground that a substantial question of law as to the interpretation of the constitution arose in the case the determination of which was necessary for the disposal of the suit. The High Court further pointed out that the learned District judge had not followed the correct procedure laid down in order XLVI, rules 2, of the Code of Civil Procedure, by giving a decision on almost all the issues and then referring for the opinion of the High Court only issue No. 11 which related to the question of reliefs to which the appellant would be entitled. Obviously enough, the decision on issue No. 11 would depend on the decision of other issues of law and facts. The High Court, however, decided the constitutional question which arose in the case and this question the High Court formulated as follows :Whether in view of article 295 and clause 18 of the grant it can be said that the legislative power of the Union of India contained in article 245 is in any way fettered so that the Union of India cannot pass any law which would take away the exemption in clause 18, assuming it to be there."7. The High Court answered the question against the appellant. It also rejected two other arguments, one based on section 3 of the Government Grants Act (XV of 1895) and the other based on article 31 of the constitution. Having thus disposed of the constitution questions, the High Court returned the suit to the District Judge, Kotah, together with a copy of its judgment and directed the learned District Judge to dispose of the suit in conformity with that judgment. The appellant then obtained a certificate from the High Court under article 132 of the constitution in respect of its decision on the constitutional questions and preferred the present appeal in pursuance of that certificate.8. It should be noticed that the appeal before us is confined to the decision of the High Court on the constitution question only and we are not concerned in the present appeal with the correctness or otherwise of the other findings on issues of law and facts given by the learned District Judge. Those findings will fall for consideration by the High Court if and when an appeal is taken to it from the judgment of the learned District Judge.9. On the constitutional question, the two points that have been urged on behalf of the appellants are (1) that the grant of May 2, 1945, particularly clause 18 thereof granting exemption to the appellant from income-tax, etc., was law and continued in force as such in Kotah in spite of the Finance Act, 1950, and (2) that by reason of article 295 of the constitution it was not open to the Union Legislature to make any law to derogate from the rights, liabilities and obligations accruing to the Government of India under the provisions of clause (b) of article 295(1) of the Constitution.Both these points we have dealt with in great detail in Maharaja Shree Umaid Mills Ltd. v. Union of India, in which we have delivered judgment today. For the reasons given therein we must hold that the grant dated May 2, 1945, was not law and did not continue as such in Kotah and, secondly, article 295(1) (b) did not in any way invalidate the Finance Act, 1950, which extended the Indian Income-tax Act, 1922, to the territories of the state of Rajasthan including Kotah.
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0[ds]Both these points we have dealt with in great detail in Maharaja Shree Umaid Mills Ltd. v. Union of India, in which we have delivered judgment today. For the reasons given therein we must hold that the grant dated May 2, 1945, was not law and did not continue as such in Kotah and, secondly, article 295(1) (b) did not in any way invalidate the Finance Act, 1950, which extended the Indian Income-tax Act, 1922, to the territories of the state of Rajasthan including Kotah.
| 0 | 1,774 | 105 |
### 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:
226 of the Constitution and obtained an ad interim injunction from the High Court. The appellant alleged that thereafter it was advised to withdraw the writ petition in the High court and to file a suit in a competent civil court. On December 15, 1953, the appellant instituted a suit in the court of the District Judge of Kotah in which it prayed for a declaration that during the continuance of the grant dated May 2, 1945, the Union of Indian defendant No. 1 in the action was not entitled to recover from the appellant income-tax, super-tax or excess profit tax; it also prayed for a second declaration that the application of the Indian Income-tax Act, 1922, to the appellant during the continuance of the grant was a violation of article 295 of the constitution and therefore illegal and void. The appellant also claimed certain other reliefs the details whereof need not be set out.The suit was contested by the Union of India as also by the State of Rajasthan, the two defendants in the action. The learned District Judge who tried the suit framed as many as eleven issues and gave his findings on most of them. While dealing with issue No. 11 which raised the question of the reliefs to which the appellant was entitled, the learned district judge referred to section 113 of the Code of civil Procedure and then said :"In this case I am of the opinion that the application of the Indian Income-tax Act, 1922, is invalid so far as the plaintiff company is concerned and I have given my reasons therefor. There is no decision on the point of the honble High Court or the honble Supreme Court. The case will be submitted to the honble High Court for favour of its opinion on the point whether by virtue of the grant, exhibit A, the Indian Income-tax Act, 1922, is invalid so far as the plaintiff company is concerned during the continuance of the grant."5. The case then came to the High Court of Rajasthan on the reference made by the learned District judge of Kotah and the point submitted for the opinion of the High Court was stated in these terms :"Whether by virtue of the grant, exhibit A, the Indian Income-tax Act, 1922, is invalid so far as the plaintiff company is concerned during the continuance of the grant."6. The High Court expressed a doubt whether the reference was competent, but it withdrew the suit under article 228 of the constitution on the ground that a substantial question of law as to the interpretation of the constitution arose in the case the determination of which was necessary for the disposal of the suit. The High Court further pointed out that the learned District judge had not followed the correct procedure laid down in order XLVI, rules 2, of the Code of Civil Procedure, by giving a decision on almost all the issues and then referring for the opinion of the High Court only issue No. 11 which related to the question of reliefs to which the appellant would be entitled. Obviously enough, the decision on issue No. 11 would depend on the decision of other issues of law and facts. The High Court, however, decided the constitutional question which arose in the case and this question the High Court formulated as follows :Whether in view of article 295 and clause 18 of the grant it can be said that the legislative power of the Union of India contained in article 245 is in any way fettered so that the Union of India cannot pass any law which would take away the exemption in clause 18, assuming it to be there."7. The High Court answered the question against the appellant. It also rejected two other arguments, one based on section 3 of the Government Grants Act (XV of 1895) and the other based on article 31 of the constitution. Having thus disposed of the constitution questions, the High Court returned the suit to the District Judge, Kotah, together with a copy of its judgment and directed the learned District Judge to dispose of the suit in conformity with that judgment. The appellant then obtained a certificate from the High Court under article 132 of the constitution in respect of its decision on the constitutional questions and preferred the present appeal in pursuance of that certificate.8. It should be noticed that the appeal before us is confined to the decision of the High Court on the constitution question only and we are not concerned in the present appeal with the correctness or otherwise of the other findings on issues of law and facts given by the learned District Judge. Those findings will fall for consideration by the High Court if and when an appeal is taken to it from the judgment of the learned District Judge.9. On the constitutional question, the two points that have been urged on behalf of the appellants are (1) that the grant of May 2, 1945, particularly clause 18 thereof granting exemption to the appellant from income-tax, etc., was law and continued in force as such in Kotah in spite of the Finance Act, 1950, and (2) that by reason of article 295 of the constitution it was not open to the Union Legislature to make any law to derogate from the rights, liabilities and obligations accruing to the Government of India under the provisions of clause (b) of article 295(1) of the Constitution.Both these points we have dealt with in great detail in Maharaja Shree Umaid Mills Ltd. v. Union of India, in which we have delivered judgment today. For the reasons given therein we must hold that the grant dated May 2, 1945, was not law and did not continue as such in Kotah and, secondly, article 295(1) (b) did not in any way invalidate the Finance Act, 1950, which extended the Indian Income-tax Act, 1922, to the territories of the state of Rajasthan including Kotah.
### Response:
0
### Explanation:
Both these points we have dealt with in great detail in Maharaja Shree Umaid Mills Ltd. v. Union of India, in which we have delivered judgment today. For the reasons given therein we must hold that the grant dated May 2, 1945, was not law and did not continue as such in Kotah and, secondly, article 295(1) (b) did not in any way invalidate the Finance Act, 1950, which extended the Indian Income-tax Act, 1922, to the territories of the state of Rajasthan including Kotah.
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Godavari Sugar Mills Limited Vs. S. Ramamurthy
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. . . . . . Apparently the Act was not intended to deprive the persons in actual possession of the land and cultivating the same as tenants thereof except in cases where such tenants were found to be in possession of lands in excess of the ceiling fixed by the Act. The above can be ascertained by reading diverse provisions in the Act. Towards this purpose, the phrase to hold land was defined in sub-section (14) of Section 2 to mean that a tenant in actual possession of the land and also an owner in actual possession of the land must be held to continue to hold land. Towards protection of tenants in actual possession by sub-section (30)of Section 2 persons who were deemed tenants under the Tenancy Act were included in the definition of the phrase tenant. The policy of law disclosed by the above definitions was to provide that wherever a landlord was not in actual possession of lands of his ownership and others cultivated such lands lawfully (whilst the owner was not cultivating the same personally) they must be held to be deemed tenants and as such entitled to continue in possession of lands to the extent of ceiling area fixed under the Ceiling Act. When the definition of phrase to hold land is read in the light of the preamble of the Act and the above discussion the meaning of that phrase would be as follows. In every case in which the landlord or the owner continues in actual possession of land he must be held to hold the land. This is in consonance with the provisions of the Act. The surplus area in possession of a landlord would have to be ascertained on the footing of the area of land in his actual possession. In other words, in cases in which the landlord and the possession of the land of his ownership, he could not be heard to state in connection with such land that it did not form part of his holding. The surplus area will have to be ascertained on the basis that land in his actual possession was (and formed part of) his holding. The consequence of the above finding is that in cases in which actual and factual possession of land continues under any arrangement whatsoever with the landlord himself the persons cultivating such land will not be holders of such land. In connection with the question of finding out the ceiling area that an owner of lands in actual possession thereof should be allowed to continue to hold and delimiting the surplus area in his possession the owner cannot be entitled to argue that other persons cultivating his land were tenants and holders of land. Similarly, for ascertaining whether the tenant or the deemed tenant is holder of land under the Ceiling Act, the true test to be applied must be the fact of actual possession thereof, the tenant cannot be held to hold the land in question. We have no doubt that in this connection extreme importance must be given to the phrase actual possession as contained in sub-section (14) of Section 2. In our view on the facts as established, it is clear that the First Petitioner Company is owner of the land mentioned in the present proceedings. The First Petitioner Company has continued to remain in actual possession of the land in spite of its having made the agreement of partnership mentioned above and in spite of its having become a partner with petitioners Nos. 2 to 6 for the purpose of carrying on the partnership business of working and running the Farm (land) and of cultivating sugarcane and other crops thereon. In this connection it is important to notice that admittedly the First Petitioner Company itself is a party to the cultivation of the land. Since it is an incorporated company it is a party to the cultivation of the land through its agents. Even so, it must be held to have continued to cultivate the land even after the date from which the partnership carried on the business. Now, it is true that the petitioners Nos. 2 to 6 by themselves and/or through their agents and labourers are also taking part in the cultivation of the land. They cannot be held to be doing so unlawfully. To this extent they fall within the category of the deemed tenants under Section 4 of the Tenancy Act. Even so, in connection with the enforcement of the Ceiling Act, the fact that the First Petitioner Company as owner, has not given up the possession of the land can never be forgotten and must be borne in mind. The First Petitioner Company has continued in actual possession of every and each part of the land and so far as we can judge it continues, to hold the land. Having regard to the above true position, we are not in a position to accept Mr. Narimans submission that each of the six petitioners are entitled to finding that they are separate land holders of the land in question and are entitled to a declaration that each of them is entitled to hold 108 acres of dry crop land from out of the land. In no event such a declaration could be made in favour of the petitioners Nos. 2 to 6, as the actual possession of the land has throughout continued with the First Petitioner Company. (9) IN arriving at the above finding, we have given due and proper attention to the observations of the Supreme Court in the case of 65 Bom LR 328 = (AIR 1964 SC 1320 ). (10) IN this case the finding of the Collector and the Tribunal is that the partnership firm was entitled to hold 108 acres of dry-crop land. That finding has not been challenged and/or agitated on behalf of the respondents Nos. 1 and 7 in this case. We are, therefore, not in a position to interfere with that declaration.
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0[ds](8) IN connection with the above submission made by Mr. Nariman and the true effect of the phrase to hold land contained in Section 2 (14) of the Ceiling Act it is necessary to remember the intent and the purpose of the Ceiling Act as clarified in the preamble which runs as follows. . . . . . . . . . . . . . . . . . in the public interest to impose a maximum limit (or ceiling) on the holding of agricultural land. . . . . . . . . . . . to provide for the acquisition of land held in excess of the ceiling and for the distribution thereof to landless and other persons. . . . . . . . . . . . Apparently the Act was not intended to deprive the persons in actual possession of the land and cultivating the same as tenants thereof except in cases where such tenants were found to be in possession of lands in excess of the ceiling fixed by the Act. The above can be ascertained by reading diverse provisions in the Act. Towards this purpose, the phrase to hold land was defined inn (14) of Section 2 to mean that a tenant in actual possession of the land and also an owner in actual possession of the land must be held to continue to hold land. Towards protection of tenants in actual possession byn (30)of Section 2 persons who were deemed tenants under the Tenancy Act were included in the definition of the phrase tenant. The policy of law disclosed by the above definitions was to provide that wherever a landlord was not in actual possession of lands of his ownership and others cultivated such lands lawfully (whilst the owner was not cultivating the same personally) they must be held to be deemed tenants and as such entitled to continue in possession of lands to the extent of ceiling area fixed under the Ceiling Act. When the definition of phrase to hold land is read in the light of the preamble of the Act and the above discussion the meaning of that phrase would be as follows. In every case in which the landlord or the owner continues in actual possession of land he must be held to hold the land. This is in consonance with the provisions of the Act. The surplus area in possession of a landlord would have to be ascertained on the footing of the area of land in his actual possession. In other words, in cases in which the landlord and the possession of the land of his ownership, he could not be heard to state in connection with such land that it did not form part of his holding. The surplus area will have to be ascertained on the basis that land in his actual possession was (and formed part of) his holding. The consequence of the above finding is that in cases in which actual and factual possession of land continues under any arrangement whatsoever with the landlord himself the persons cultivating such land will not be holders of such land. In connection with the question of finding out the ceiling area that an owner of lands in actual possession thereof should be allowed to continue to hold and delimiting the surplus area in his possession the owner cannot be entitled to argue that other persons cultivating his land were tenants and holders of land. Similarly, for ascertaining whether the tenant or the deemed tenant is holder of land under the Ceiling Act, the true test to be applied must be the fact of actual possession thereof, the tenant cannot be held to hold the land in question. We have no doubt that in this connection extreme importance must be given to the phrase actual possession as contained inn (14) of Section 2. In our view on the facts as established, it is clear that the First Petitioner Company is owner of the land mentioned in the present proceedings. The First Petitioner Company has continued to remain in actual possession of the land in spite of its having made the agreement of partnership mentioned above and in spite of its having become a partner with petitioners Nos. 2 to 6 for the purpose of carrying on the partnership business of working and running the Farm (land) and of cultivating sugarcane and other crops thereon. In this connection it is important to notice that admittedly the First Petitioner Company itself is a party to the cultivation of the land. Since it is an incorporated company it is a party to the cultivation of the land through its agents. Even so, it must be held to have continued to cultivate the land even after the date from which the partnership carried on the business. Now, it is true that the petitioners Nos. 2 to 6 by themselves and/or through their agents and labourers are also taking part in the cultivation of the land. They cannot be held to be doing so unlawfully. To this extent they fall within the category of the deemed tenants under Section 4 of the Tenancy Act. Even so, in connection with the enforcement of the Ceiling Act, the fact that the First Petitioner Company as owner, has not given up the possession of the land can never be forgotten and must be borne in mind. The First Petitioner Company has continued in actual possession of every and each part of the land and so far as we can judge it continues, to hold the land. Having regard to the above true position, we are not in a position to accept Mr. Narimans submission that each of the six petitioners are entitled to finding that they are separate land holders of the land in question and are entitled to a declaration that each of them is entitled to hold 108 acres of dry crop land from out of the land. In no event such a declaration could be made in favour of the petitioners Nos. 2 to 6, as the actual possession of the land has throughout continued with the First Petitioner Company(9) IN arriving at the above finding, we have given due and proper attention to the observations of the Supreme Court in the case of 65 Bom LR 328 = (AIR 1964 SC 1320 )(10) IN this case the finding of the Collector and the Tribunal is that the partnership firm was entitled to hold 108 acres ofp land. That finding has not been challenged and/or agitated on behalf of the respondents Nos. 1 and 7 in this case. We are, therefore, not in a position to interfere with that declaration.
| 0 | 4,218 | 1,207 |
### 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:
. . . . . . Apparently the Act was not intended to deprive the persons in actual possession of the land and cultivating the same as tenants thereof except in cases where such tenants were found to be in possession of lands in excess of the ceiling fixed by the Act. The above can be ascertained by reading diverse provisions in the Act. Towards this purpose, the phrase to hold land was defined in sub-section (14) of Section 2 to mean that a tenant in actual possession of the land and also an owner in actual possession of the land must be held to continue to hold land. Towards protection of tenants in actual possession by sub-section (30)of Section 2 persons who were deemed tenants under the Tenancy Act were included in the definition of the phrase tenant. The policy of law disclosed by the above definitions was to provide that wherever a landlord was not in actual possession of lands of his ownership and others cultivated such lands lawfully (whilst the owner was not cultivating the same personally) they must be held to be deemed tenants and as such entitled to continue in possession of lands to the extent of ceiling area fixed under the Ceiling Act. When the definition of phrase to hold land is read in the light of the preamble of the Act and the above discussion the meaning of that phrase would be as follows. In every case in which the landlord or the owner continues in actual possession of land he must be held to hold the land. This is in consonance with the provisions of the Act. The surplus area in possession of a landlord would have to be ascertained on the footing of the area of land in his actual possession. In other words, in cases in which the landlord and the possession of the land of his ownership, he could not be heard to state in connection with such land that it did not form part of his holding. The surplus area will have to be ascertained on the basis that land in his actual possession was (and formed part of) his holding. The consequence of the above finding is that in cases in which actual and factual possession of land continues under any arrangement whatsoever with the landlord himself the persons cultivating such land will not be holders of such land. In connection with the question of finding out the ceiling area that an owner of lands in actual possession thereof should be allowed to continue to hold and delimiting the surplus area in his possession the owner cannot be entitled to argue that other persons cultivating his land were tenants and holders of land. Similarly, for ascertaining whether the tenant or the deemed tenant is holder of land under the Ceiling Act, the true test to be applied must be the fact of actual possession thereof, the tenant cannot be held to hold the land in question. We have no doubt that in this connection extreme importance must be given to the phrase actual possession as contained in sub-section (14) of Section 2. In our view on the facts as established, it is clear that the First Petitioner Company is owner of the land mentioned in the present proceedings. The First Petitioner Company has continued to remain in actual possession of the land in spite of its having made the agreement of partnership mentioned above and in spite of its having become a partner with petitioners Nos. 2 to 6 for the purpose of carrying on the partnership business of working and running the Farm (land) and of cultivating sugarcane and other crops thereon. In this connection it is important to notice that admittedly the First Petitioner Company itself is a party to the cultivation of the land. Since it is an incorporated company it is a party to the cultivation of the land through its agents. Even so, it must be held to have continued to cultivate the land even after the date from which the partnership carried on the business. Now, it is true that the petitioners Nos. 2 to 6 by themselves and/or through their agents and labourers are also taking part in the cultivation of the land. They cannot be held to be doing so unlawfully. To this extent they fall within the category of the deemed tenants under Section 4 of the Tenancy Act. Even so, in connection with the enforcement of the Ceiling Act, the fact that the First Petitioner Company as owner, has not given up the possession of the land can never be forgotten and must be borne in mind. The First Petitioner Company has continued in actual possession of every and each part of the land and so far as we can judge it continues, to hold the land. Having regard to the above true position, we are not in a position to accept Mr. Narimans submission that each of the six petitioners are entitled to finding that they are separate land holders of the land in question and are entitled to a declaration that each of them is entitled to hold 108 acres of dry crop land from out of the land. In no event such a declaration could be made in favour of the petitioners Nos. 2 to 6, as the actual possession of the land has throughout continued with the First Petitioner Company. (9) IN arriving at the above finding, we have given due and proper attention to the observations of the Supreme Court in the case of 65 Bom LR 328 = (AIR 1964 SC 1320 ). (10) IN this case the finding of the Collector and the Tribunal is that the partnership firm was entitled to hold 108 acres of dry-crop land. That finding has not been challenged and/or agitated on behalf of the respondents Nos. 1 and 7 in this case. We are, therefore, not in a position to interfere with that declaration.
### Response:
0
### Explanation:
. . . . . . . . . . . Apparently the Act was not intended to deprive the persons in actual possession of the land and cultivating the same as tenants thereof except in cases where such tenants were found to be in possession of lands in excess of the ceiling fixed by the Act. The above can be ascertained by reading diverse provisions in the Act. Towards this purpose, the phrase to hold land was defined inn (14) of Section 2 to mean that a tenant in actual possession of the land and also an owner in actual possession of the land must be held to continue to hold land. Towards protection of tenants in actual possession byn (30)of Section 2 persons who were deemed tenants under the Tenancy Act were included in the definition of the phrase tenant. The policy of law disclosed by the above definitions was to provide that wherever a landlord was not in actual possession of lands of his ownership and others cultivated such lands lawfully (whilst the owner was not cultivating the same personally) they must be held to be deemed tenants and as such entitled to continue in possession of lands to the extent of ceiling area fixed under the Ceiling Act. When the definition of phrase to hold land is read in the light of the preamble of the Act and the above discussion the meaning of that phrase would be as follows. In every case in which the landlord or the owner continues in actual possession of land he must be held to hold the land. This is in consonance with the provisions of the Act. The surplus area in possession of a landlord would have to be ascertained on the footing of the area of land in his actual possession. In other words, in cases in which the landlord and the possession of the land of his ownership, he could not be heard to state in connection with such land that it did not form part of his holding. The surplus area will have to be ascertained on the basis that land in his actual possession was (and formed part of) his holding. The consequence of the above finding is that in cases in which actual and factual possession of land continues under any arrangement whatsoever with the landlord himself the persons cultivating such land will not be holders of such land. In connection with the question of finding out the ceiling area that an owner of lands in actual possession thereof should be allowed to continue to hold and delimiting the surplus area in his possession the owner cannot be entitled to argue that other persons cultivating his land were tenants and holders of land. Similarly, for ascertaining whether the tenant or the deemed tenant is holder of land under the Ceiling Act, the true test to be applied must be the fact of actual possession thereof, the tenant cannot be held to hold the land in question. We have no doubt that in this connection extreme importance must be given to the phrase actual possession as contained inn (14) of Section 2. In our view on the facts as established, it is clear that the First Petitioner Company is owner of the land mentioned in the present proceedings. The First Petitioner Company has continued to remain in actual possession of the land in spite of its having made the agreement of partnership mentioned above and in spite of its having become a partner with petitioners Nos. 2 to 6 for the purpose of carrying on the partnership business of working and running the Farm (land) and of cultivating sugarcane and other crops thereon. In this connection it is important to notice that admittedly the First Petitioner Company itself is a party to the cultivation of the land. Since it is an incorporated company it is a party to the cultivation of the land through its agents. Even so, it must be held to have continued to cultivate the land even after the date from which the partnership carried on the business. Now, it is true that the petitioners Nos. 2 to 6 by themselves and/or through their agents and labourers are also taking part in the cultivation of the land. They cannot be held to be doing so unlawfully. To this extent they fall within the category of the deemed tenants under Section 4 of the Tenancy Act. Even so, in connection with the enforcement of the Ceiling Act, the fact that the First Petitioner Company as owner, has not given up the possession of the land can never be forgotten and must be borne in mind. The First Petitioner Company has continued in actual possession of every and each part of the land and so far as we can judge it continues, to hold the land. Having regard to the above true position, we are not in a position to accept Mr. Narimans submission that each of the six petitioners are entitled to finding that they are separate land holders of the land in question and are entitled to a declaration that each of them is entitled to hold 108 acres of dry crop land from out of the land. In no event such a declaration could be made in favour of the petitioners Nos. 2 to 6, as the actual possession of the land has throughout continued with the First Petitioner Company(9) IN arriving at the above finding, we have given due and proper attention to the observations of the Supreme Court in the case of 65 Bom LR 328 = (AIR 1964 SC 1320 )(10) IN this case the finding of the Collector and the Tribunal is that the partnership firm was entitled to hold 108 acres ofp land. That finding has not been challenged and/or agitated on behalf of the respondents Nos. 1 and 7 in this case. We are, therefore, not in a position to interfere with that declaration.
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Fatta and Others Vs. State of Uttar Pradesh
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FAZAL ALI, J. 1. In this appeal by special leave, the learned counsel for the appellants has pressed the appeal only on the question of the applicability of Section 302 read with Section 149 IPC to the appellants other than Ramakant Rai. It was urged that according to the findings of the Court below, the occurrence took place in the disputed field which was claimed by both the parties. According to the prosecution case, the field in question was in the possession of the deceased Janardan and PW 1 and they had sown Arhar crop and had come to harvest the same. At that time the accused in a body arrived at the scene variously amend, with a view to dispossess the prosecution party by force. There was exchange of brickbats and ultimately one of the accused Ram Sewak who was armed with a gun, fired a shot which hit the right eye of Janardan as a result of which he fell down and died instantaneously. The appellant Ramakant Rai is said to have provided a cartridge to Ram Sewak before he fired the gun. In these circumstances, therefore, the conclusion is inescapable that Ram Sewak and Ramakant Rai and undoubtedly the common intention to cause murder of the deceased. As regards others, on the materials. We are satisfied that the occurrence took place over the possession of land claimed by both the parties. Apart from Ramakant Rai and Ram Sewak no other person of the Assembly took part in the assault in the deceased. Although some of the appellants were armed with pharsa and spear and one of the appellants with a pistol, but none of these weapons were used. In the circumstances of the present case, there can be no doubt that the appellants had gone armed in order to dispossess the prosecution party and cause such injury as may be necessary for achieving that object. But the evidence does not show that all the appellants shared the common object of committing the murder of Janardan. It is true that the mere fact that no overt act has been attributed to the members of the unlawful assembly, is not sufficient to disprove the charge under Section 149 IPC. But this question depends on the facts of each case. In the instant cases, we are satisfied that at the most the appellants other than Ram Sewak and Ramakant Rai had merely the intention to cause an offence under Section 325 IPC and were, therefore, guilty of offence under Section 325/149 as also of rioting. The other question that has to be determined is as to what sentence should be awarded to the appellants. The appellants have served only 3 to 4 months and have been on bail throughout. It would not be conducive in the interest of justice to send them back to jail after a lapse of 10 years. On the other hand, if the family of the deceased is heavily compensated, that will serve the socio-economic purpose which the modern trend of the policy of sentencing required. For these reasons, therefore, we after the conviction of the appellants except Ramakant Rai from one under Section 302/149 to Section 325/149 and reduce the sentence to the period already served. In lieu of sentence remitted, we impose a fine of Rs. 5000 on each of the appellants in default to two years R. I. The entire fine, if realised, shall be paid to PW 1, the widow of Janardan. The sentence under Section 147 is also reduced to the period already undergone. 2. As regards Ramakant Rai, there is evidence of the eyewitnesses that he was person who supplied cartridge to Ram Sewak in order to shoot Janardan. In these circumstances, Ramakant Rai is convicted under Section 302/34 and his sentence of life imprisonment is upheld under this section. 3.
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0[ds]In the circumstances of the present case, there can be no doubt that the appellants had gone armed in order to dispossess the prosecution party and cause such injury as may be necessary for achieving that object. But the evidence does not show that all the appellants shared the common object of committing the murder of Janardan. It is true that the mere fact that no overt act has been attributed to the members of the unlawful assembly, is not sufficient to disprove the charge under Section 149 IPC. But this question depends on the facts of each case. In the instant cases, we are satisfied that at the most the appellants other than Ram Sewak and Ramakant Rai had merely the intention to cause an offence under Section 325 IPC and were, therefore, guilty of offence under Section 325/149 as also of rioting. The other question that has to be determined is as to what sentence should be awarded to the appellants. The appellants have served only 3 to 4 months and have been on bail throughout. It would not be conducive in the interest of justice to send them back to jail after a lapse of 10 years. On the other hand, if the family of the deceased is heavily compensated, that will serve thec purpose which the modern trend of the policy of sentencing required. For these reasons, therefore, we after the conviction of the appellants except Ramakant Rai from one under Section 302/149 to Section 325/149 and reduce the sentence to the period already served. In lieu of sentence remitted, we impose a fine of Rs. 5000 on each of the appellants in default to two years R. I. The entire fine, if realised, shall be paid to PW 1, the widow of Janardan. The sentence under Section 147 is also reduced to the period already undergone2. As regards Ramakant Rai, there is evidence of the eyewitnesses that he was person who supplied cartridge to Ram Sewak in order to shoot Janardan. In these circumstances, Ramakant Rai is convicted under Section 302/34 and his sentence of life imprisonment is upheld under this section.
| 0 | 697 | 392 |
### 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:
FAZAL ALI, J. 1. In this appeal by special leave, the learned counsel for the appellants has pressed the appeal only on the question of the applicability of Section 302 read with Section 149 IPC to the appellants other than Ramakant Rai. It was urged that according to the findings of the Court below, the occurrence took place in the disputed field which was claimed by both the parties. According to the prosecution case, the field in question was in the possession of the deceased Janardan and PW 1 and they had sown Arhar crop and had come to harvest the same. At that time the accused in a body arrived at the scene variously amend, with a view to dispossess the prosecution party by force. There was exchange of brickbats and ultimately one of the accused Ram Sewak who was armed with a gun, fired a shot which hit the right eye of Janardan as a result of which he fell down and died instantaneously. The appellant Ramakant Rai is said to have provided a cartridge to Ram Sewak before he fired the gun. In these circumstances, therefore, the conclusion is inescapable that Ram Sewak and Ramakant Rai and undoubtedly the common intention to cause murder of the deceased. As regards others, on the materials. We are satisfied that the occurrence took place over the possession of land claimed by both the parties. Apart from Ramakant Rai and Ram Sewak no other person of the Assembly took part in the assault in the deceased. Although some of the appellants were armed with pharsa and spear and one of the appellants with a pistol, but none of these weapons were used. In the circumstances of the present case, there can be no doubt that the appellants had gone armed in order to dispossess the prosecution party and cause such injury as may be necessary for achieving that object. But the evidence does not show that all the appellants shared the common object of committing the murder of Janardan. It is true that the mere fact that no overt act has been attributed to the members of the unlawful assembly, is not sufficient to disprove the charge under Section 149 IPC. But this question depends on the facts of each case. In the instant cases, we are satisfied that at the most the appellants other than Ram Sewak and Ramakant Rai had merely the intention to cause an offence under Section 325 IPC and were, therefore, guilty of offence under Section 325/149 as also of rioting. The other question that has to be determined is as to what sentence should be awarded to the appellants. The appellants have served only 3 to 4 months and have been on bail throughout. It would not be conducive in the interest of justice to send them back to jail after a lapse of 10 years. On the other hand, if the family of the deceased is heavily compensated, that will serve the socio-economic purpose which the modern trend of the policy of sentencing required. For these reasons, therefore, we after the conviction of the appellants except Ramakant Rai from one under Section 302/149 to Section 325/149 and reduce the sentence to the period already served. In lieu of sentence remitted, we impose a fine of Rs. 5000 on each of the appellants in default to two years R. I. The entire fine, if realised, shall be paid to PW 1, the widow of Janardan. The sentence under Section 147 is also reduced to the period already undergone. 2. As regards Ramakant Rai, there is evidence of the eyewitnesses that he was person who supplied cartridge to Ram Sewak in order to shoot Janardan. In these circumstances, Ramakant Rai is convicted under Section 302/34 and his sentence of life imprisonment is upheld under this section. 3.
### Response:
0
### Explanation:
In the circumstances of the present case, there can be no doubt that the appellants had gone armed in order to dispossess the prosecution party and cause such injury as may be necessary for achieving that object. But the evidence does not show that all the appellants shared the common object of committing the murder of Janardan. It is true that the mere fact that no overt act has been attributed to the members of the unlawful assembly, is not sufficient to disprove the charge under Section 149 IPC. But this question depends on the facts of each case. In the instant cases, we are satisfied that at the most the appellants other than Ram Sewak and Ramakant Rai had merely the intention to cause an offence under Section 325 IPC and were, therefore, guilty of offence under Section 325/149 as also of rioting. The other question that has to be determined is as to what sentence should be awarded to the appellants. The appellants have served only 3 to 4 months and have been on bail throughout. It would not be conducive in the interest of justice to send them back to jail after a lapse of 10 years. On the other hand, if the family of the deceased is heavily compensated, that will serve thec purpose which the modern trend of the policy of sentencing required. For these reasons, therefore, we after the conviction of the appellants except Ramakant Rai from one under Section 302/149 to Section 325/149 and reduce the sentence to the period already served. In lieu of sentence remitted, we impose a fine of Rs. 5000 on each of the appellants in default to two years R. I. The entire fine, if realised, shall be paid to PW 1, the widow of Janardan. The sentence under Section 147 is also reduced to the period already undergone2. As regards Ramakant Rai, there is evidence of the eyewitnesses that he was person who supplied cartridge to Ram Sewak in order to shoot Janardan. In these circumstances, Ramakant Rai is convicted under Section 302/34 and his sentence of life imprisonment is upheld under this section.
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L.G. Chaudhari Vs. Secretary, L. S. G. Department, Government of Bihar and Others
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and that he was to be treated as a permanent Government servant. The Government wanted to know why the Accountant General was withholding the appellants increment. In the face of these two letters it appears to us be futile for the Government to contended that the appellant had not been confirmed and that he continued as a probationer till September 1967. Even the controversial letter dated November 28, 1956, contains two significant undisputed statements : "...... Shri Chaudhari has been appointed on permanent, substantive basis with effect from August 5, 1955, with probation for one year" and "in the circumstances Shri Chaudhari may be treated as a permanent Government servant with effect from August 5, 1955". The draft of the letter dated November 28, 1956 with the words "is being" and "will be" substituted for the words "has been" was sought to be put forward as a correct copy of the original on the basis of the extract from the Audit Register. On that basis it was claimed that there was no order confirming the service of the appellant. We may mentioned here that the original letter received by the Accountant General was not produced on the ground that it was not traceable. We are unable to place any reliance on the extract from the Audit Register for the reason that in the counter-affidavit fild on behalf of the Accountant General it was stated that the entry in the Audit Registers was attested in September, 1958, while in the letter dated September 15, 1958, it was clearly stated that the original letter was not available. If so, how could the entry in the Audit Register have been attested in September, 1958 ? We do not desire to further probe into the loss of the original letters, the alleged interpolations in the draft etc., as we are clearly satisfied on the basis of the letters dated August 20, 1956 and March 18, 1967, that the appellant was confirmed in his post as Town Planner as claimed by him. To say the least the stand taken by the Government that the appellant continued as a probationer till September 15, 1967 is ludicrous. On more than one occasion the Government asked the Accountant General why the appellants increments had been withheld despite the appellant having been appointed on a permanent and substantive basis. The stand of the Government before the High Court and before us is in capable of being justified in any way. It is clear that some mischief was afoot in the Bihar Secretariat and official records had either disappeared or had been tampered with. The appellant was not to blame for it. The mischief makers who were trying to make out that the appellant had not been confirmed were apparently responsible. We think the less said about these matters the better. 3. The learned Attorney-General who appeared for the State of Bihar argued that there was no formal order of confirmation in terms of Article 166 of the Constitution and that under the provisions of Article 163(3) the proceeding of the Cabinet could not be looked into. He urged that the question whether the appellant had been confirmed in the post of Town Planner was a disputed question of fact and therefore, the High Court was right in not venturing to decide the question. We do not agree with the learned Attorney General. In the absence of a formal order drawn up in terms of Article 166 of the Constitution it was certainly open to the appellant to prove by evidence aliunde that he had been appointed on permanent and substantive basis. In R. Chitralekha v. State of Mysore ((1964) 6 SCR 368 : AIR 1964 SC 1823 ), it was pointed out that the provision of Article 166 of the Constitution were only directory and not mandatory and, if they were not complied with it could be established as a question of fact that the order was issued by the State Government. The learned Attorney-General urged that the order, if any, was never communicated to the appellant and, therefore, was of no effect. He relied on Bachhitar Singh v. State of Punjab (1962 Supp 3 SCR 713 : AIR 1963 SC 39). We may at once say that no such plea was ever raised before the High Court and the appellant cannot at this stage be non-suited on the ground that the order of confirmation was never communicated to him. We do not consider it necessary to express any opinion on the question whether Article 163(3) of the Constitution bars the court from looking into the proceeding of the Cabinet. It is one thing to say "the question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court", and altogether a different thing to say that the proceedings of the Council of Minister cannot be looked into even if produced without objection and without any claim of privilege. We do not desire to say anything more on this aspect of the case, since there is enough of other material in the case. 4. We are also unable to find any force in the submission of the learned Attorney-General that the High Court was quite right in refusing to decide the question whether the appellant had been confirmed or whether he continued as a Probationer till September 15, 1967 on the ground that it was a disputed question of fact. As already observed by us the communications addressed by the Government to the Accountant General are clear on the point and the stand taken by the Government for the first time in 1967 that the appellant was continuing on probation till then was ludicrous. To refuse to decide the question when the entire material was before the court - it is not suggested that there was any other material - and to direct the appellant to go to a Civil Court would only be to shirk our responsibility.
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1[ds]We agree with him. The letter dated August 29, 1956 from the Government to the Accountant General contains a clear recital that the post of Town planner had been made permanent and pensionable with effect from August 5, 1955, the date on which Shri Chaudhari had joined the post and that Shri Chaudhari was therefore, to be treated as an ordinary permanent gazetted Government servant. In his letter dated September 28, 1956, the Accountant General did not raise any query whether the appellant had been confirmed but raised the limited query as to the date from which he was to be treated as a permanent Government servant. Again in the letter dated March 18, 1967, the Government reiterated the position that the appellant had been appointed against a permanent and pensionable post and that he was to be treated as a permanent Government servant. The Government wanted to know why the Accountant General was withholding the appellants incrementThe appellant was not to blame for it. The mischief makers who were trying to make out that the appellant had not been confirmed were apparently responsible. We think the less said about these matters the better. We do notagree with the learned Attorney General. In the absence of a formal order drawn up in terms of Article 166 of the Constitution it was certainly open to the appellant to prove by evidence aliunde that he had been appointed on permanent and substantive basis. In R. Chitralekha v. State of Mysore ((1964) 6 SCR 368 : AIR 1964 SC 1823 ), it was pointed out that the provision of Article 166 of the Constitution were only directory and not mandatory and, if they were not complied with it could be established as a question of fact that the order was issued by the State Government. The learnedl urged that the order, if any, was never communicated to the appellant and, therefore, was of no effect. He relied on Bachhitar Singh v. State of Punjab (1962 Supp 3 SCR 713 : AIR 1963 SC 39). We may at once say that no such plea was ever raised before the High Court and the appellant cannot at this stage bed on the ground that the order of confirmation was never communicated tohim.We do notconsider it necessary to express any opinion on the question whether Article 163(3) of the Constitution bars the court from looking into the proceeding of the Cabinet. It is one thing to say "the question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court", and altogether a different thing to say that the proceedings of the Council of Minister cannot be looked into even if produced without objection and without any claim of. Wedo notdesire to say anything more on this aspect of the case, since there is enough of other material in the caseare also unable to find any force in the submission of the learnedl that the High Court was quite right in refusing to decide the question whether the appellant had been confirmed or whether he continued as a Probationer till September 15, 1967 on the ground that it was a disputed question of fact. As already observed by us the communications addressed by the Government to the Accountant General are clear on the point and the stand taken by the Government for the first time in 1967 that the appellant was continuing on probation till then was ludicrous. To refuse to decide the question when the entire material was before the courtit is not suggested that there was any other materialand to direct the appellant to go to a Civil Court would only be to shirk our responsibility.
| 1 | 3,030 | 675 |
### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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and that he was to be treated as a permanent Government servant. The Government wanted to know why the Accountant General was withholding the appellants increment. In the face of these two letters it appears to us be futile for the Government to contended that the appellant had not been confirmed and that he continued as a probationer till September 1967. Even the controversial letter dated November 28, 1956, contains two significant undisputed statements : "...... Shri Chaudhari has been appointed on permanent, substantive basis with effect from August 5, 1955, with probation for one year" and "in the circumstances Shri Chaudhari may be treated as a permanent Government servant with effect from August 5, 1955". The draft of the letter dated November 28, 1956 with the words "is being" and "will be" substituted for the words "has been" was sought to be put forward as a correct copy of the original on the basis of the extract from the Audit Register. On that basis it was claimed that there was no order confirming the service of the appellant. We may mentioned here that the original letter received by the Accountant General was not produced on the ground that it was not traceable. We are unable to place any reliance on the extract from the Audit Register for the reason that in the counter-affidavit fild on behalf of the Accountant General it was stated that the entry in the Audit Registers was attested in September, 1958, while in the letter dated September 15, 1958, it was clearly stated that the original letter was not available. If so, how could the entry in the Audit Register have been attested in September, 1958 ? We do not desire to further probe into the loss of the original letters, the alleged interpolations in the draft etc., as we are clearly satisfied on the basis of the letters dated August 20, 1956 and March 18, 1967, that the appellant was confirmed in his post as Town Planner as claimed by him. To say the least the stand taken by the Government that the appellant continued as a probationer till September 15, 1967 is ludicrous. On more than one occasion the Government asked the Accountant General why the appellants increments had been withheld despite the appellant having been appointed on a permanent and substantive basis. The stand of the Government before the High Court and before us is in capable of being justified in any way. It is clear that some mischief was afoot in the Bihar Secretariat and official records had either disappeared or had been tampered with. The appellant was not to blame for it. The mischief makers who were trying to make out that the appellant had not been confirmed were apparently responsible. We think the less said about these matters the better. 3. The learned Attorney-General who appeared for the State of Bihar argued that there was no formal order of confirmation in terms of Article 166 of the Constitution and that under the provisions of Article 163(3) the proceeding of the Cabinet could not be looked into. He urged that the question whether the appellant had been confirmed in the post of Town Planner was a disputed question of fact and therefore, the High Court was right in not venturing to decide the question. We do not agree with the learned Attorney General. In the absence of a formal order drawn up in terms of Article 166 of the Constitution it was certainly open to the appellant to prove by evidence aliunde that he had been appointed on permanent and substantive basis. In R. Chitralekha v. State of Mysore ((1964) 6 SCR 368 : AIR 1964 SC 1823 ), it was pointed out that the provision of Article 166 of the Constitution were only directory and not mandatory and, if they were not complied with it could be established as a question of fact that the order was issued by the State Government. The learned Attorney-General urged that the order, if any, was never communicated to the appellant and, therefore, was of no effect. He relied on Bachhitar Singh v. State of Punjab (1962 Supp 3 SCR 713 : AIR 1963 SC 39). We may at once say that no such plea was ever raised before the High Court and the appellant cannot at this stage be non-suited on the ground that the order of confirmation was never communicated to him. We do not consider it necessary to express any opinion on the question whether Article 163(3) of the Constitution bars the court from looking into the proceeding of the Cabinet. It is one thing to say "the question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court", and altogether a different thing to say that the proceedings of the Council of Minister cannot be looked into even if produced without objection and without any claim of privilege. We do not desire to say anything more on this aspect of the case, since there is enough of other material in the case. 4. We are also unable to find any force in the submission of the learned Attorney-General that the High Court was quite right in refusing to decide the question whether the appellant had been confirmed or whether he continued as a Probationer till September 15, 1967 on the ground that it was a disputed question of fact. As already observed by us the communications addressed by the Government to the Accountant General are clear on the point and the stand taken by the Government for the first time in 1967 that the appellant was continuing on probation till then was ludicrous. To refuse to decide the question when the entire material was before the court - it is not suggested that there was any other material - and to direct the appellant to go to a Civil Court would only be to shirk our responsibility.
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1
### Explanation:
We agree with him. The letter dated August 29, 1956 from the Government to the Accountant General contains a clear recital that the post of Town planner had been made permanent and pensionable with effect from August 5, 1955, the date on which Shri Chaudhari had joined the post and that Shri Chaudhari was therefore, to be treated as an ordinary permanent gazetted Government servant. In his letter dated September 28, 1956, the Accountant General did not raise any query whether the appellant had been confirmed but raised the limited query as to the date from which he was to be treated as a permanent Government servant. Again in the letter dated March 18, 1967, the Government reiterated the position that the appellant had been appointed against a permanent and pensionable post and that he was to be treated as a permanent Government servant. The Government wanted to know why the Accountant General was withholding the appellants incrementThe appellant was not to blame for it. The mischief makers who were trying to make out that the appellant had not been confirmed were apparently responsible. We think the less said about these matters the better. We do notagree with the learned Attorney General. In the absence of a formal order drawn up in terms of Article 166 of the Constitution it was certainly open to the appellant to prove by evidence aliunde that he had been appointed on permanent and substantive basis. In R. Chitralekha v. State of Mysore ((1964) 6 SCR 368 : AIR 1964 SC 1823 ), it was pointed out that the provision of Article 166 of the Constitution were only directory and not mandatory and, if they were not complied with it could be established as a question of fact that the order was issued by the State Government. The learnedl urged that the order, if any, was never communicated to the appellant and, therefore, was of no effect. He relied on Bachhitar Singh v. State of Punjab (1962 Supp 3 SCR 713 : AIR 1963 SC 39). We may at once say that no such plea was ever raised before the High Court and the appellant cannot at this stage bed on the ground that the order of confirmation was never communicated tohim.We do notconsider it necessary to express any opinion on the question whether Article 163(3) of the Constitution bars the court from looking into the proceeding of the Cabinet. It is one thing to say "the question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court", and altogether a different thing to say that the proceedings of the Council of Minister cannot be looked into even if produced without objection and without any claim of. Wedo notdesire to say anything more on this aspect of the case, since there is enough of other material in the caseare also unable to find any force in the submission of the learnedl that the High Court was quite right in refusing to decide the question whether the appellant had been confirmed or whether he continued as a Probationer till September 15, 1967 on the ground that it was a disputed question of fact. As already observed by us the communications addressed by the Government to the Accountant General are clear on the point and the stand taken by the Government for the first time in 1967 that the appellant was continuing on probation till then was ludicrous. To refuse to decide the question when the entire material was before the courtit is not suggested that there was any other materialand to direct the appellant to go to a Civil Court would only be to shirk our responsibility.
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Kulkarni Patterns Pvt. Ltd Vs. Shri Vasant Raburao Ashtekar
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a letter sent by registered post can be rebutted by the addressee by appearing as witness and stating that he never received such letter. If the acknowledgment due receipt contains the signatures of the addressee himself and the addressee as a witness states that he never received such letter and the acknowledgment due does not bear his signature and such statement of the addressee is believed then it would be a sufficient rebuttal of the presumption drawn against him. The burden would then shift on the plaintiff who wants to rely on such presumption to satisfy the Court by leading oral or documentary evidence to prove the service of such letter on the addressee. This rebuttal by the defendant of the presumption drawn against him would of course depend on the veracity of his statement. The Court in the facts and circumstances of a case may not consider such denial Exhibit 51. It was thus contended that the by the defendant as truthful and in that case such denial alone would not be sufficient. But if there is nothing to disbelieve the statement of the defendant then it would be sufficient rebuttal of the presumption of service of such letter or notice sent to him by registered post." In the present case the plaintiffs had sent a copy of the notice to all the three defendants by registered post. Three postal receipts Exhibits 52, 53 and 54 have been filed in the present case and Exhibit 51, one acknowledgment receipt. As regards Exhibit 51, the defendant No. 2 has appeared in the witness box and has denied his signatures. However, it has not been shown that this acknowledgment receipt was related to which of the three notices sent vide postal receipts Exhibits 52, 53 and 54. The plaintiffs have clearly proved that three notices were sent by registered post and which is clearly borne out from the three postal receipts. Admittedly the premises were taken on rent in the name of the defendant No. 1 namely Kulkarni Patterns Pvt. Ltd. and it is proved that one of the notices by registered post was also sent to the company. It has been admitted by the defendant No. 2 in his statement that the notice was sent on the correct address. The defendant No. 2 in his statement has nowhere stated that no notice had been received by the company. The only denial is in respect of the acknowledgment receipt Exhibit 51 and the only inference which could legitimately be drawn is that in respect of one notice, it was not proved as to who acknowledged the receipt of the notice. We do not approve the following statement of law made by the learned Additional District Judge "that the evidence of the defendant did not show any extraordinary happenings or the events which prevented the following of usual course of business and thus his mere denial has no value." However, in the present case three notices were sent by registered post and one of which was sent in the name of the defendant-company who was the tenant, a presumption can legitimately be drawn that the notice dated 7-8-1980 had been served on the company. There is no rebuttal on behalf of the defendant as regards the notice served on the company and in the facts and circumstances of the present case we hold that notice dated 7-8-1980 sent by registered post was served on the defendant-company. In Green View Radio Service (supra) it was held that the acknowledgment due receipt contained the signature of the addressee himself and the addressee as a witness stated that he never received such letter and the acknowledgment due did not bear his signature and such statement of the addressee if believed then it would be a sufficient rebuttal of the presumption drawn against him. The burden will then shift on the plaintiff who wants to rely on such presumption to satisfy the Court by leading oral or documentary evidence to prove the service of such letter on the addressee. Even applying this statement of law in the facts of the present case, the rebuttal, if any, made by defendant No. 2 can be related only with regard to Exhibit 51 for one notice but not with regard to all the three notices sent by registered post vide Exhibits 52 to 54. Thus, in the facts of the case in hand before us we are fully convinced that the service of notice shall have to be presumed so far as defendant company is concerned and there is no rebuttal to such presumption by the defendant-appeal]ants.7. The requirement of sending notice under S. 12(2) of the Act is to be done in the manner prescribed under paragraph two of S. 106 of the Transfer of Property Act which reads as under: "Every notice under this section must be in writing signed by or on behalf of the person giving it and either be sent by post to the party who is intended to be bound by it or be cndered or delivered personally to such party, or to one of his family or servants, at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property." The reading of the above provision clearly shows that the notice can be sent by post to the party who is intended to be bound by it. Thus, the notice sent by registered post in the name of the defendant-company who is. the tenant is fully in accordance with the requirement of S. 106 of the Transfer of Property Act.8. So far as the finding recorded by the learned Additional District Judge that the defendants were defaulter in the payment of @page-SC1100 rent and full amount of rent was not paid or deposited on the first date of hearing and no rent was paid month by month during the pendency of the appeal could not be assailed by the learned counsel for the appellants.
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0[ds]In Green View Radio Service (supra) it was held that the acknowledgment due receipt contained the signature of the addressee himself and the addressee as a witness stated that he never received such letter and the acknowledgment due did not bear his signature and such statement of the addressee if believed then it would be a sufficient rebuttal of the presumption drawn against him. The burden will then shift on the plaintiff who wants to rely on such presumption to satisfy the Court by leading oral or documentary evidence to prove the service of such letter on the addressee. Even applying this statement of law in the facts of the present case, the rebuttal, if any, made by defendant No. 2 can be related only with regard to Exhibit 51 for one notice but not with regard to all the three notices sent by registered post vide Exhibits 52 to 54. Thus, in the facts of the case in hand before us we are fully convinced that the service of notice shall have to be presumed so far as defendant company is concerned and there is no rebuttal to such presumption by the defendant-appeal]ants.7. The requirement of sending notice under S. 12(2) of the Act is to be done in the manner prescribed under paragraph two of S. 106 of the Transfer of Property Act which reads asnotice under this section must be in writing signed by or on behalf of the person giving it and either be sent by post to the party who is intended to be bound by it or be cndered or delivered personally to such party, or to one of his family or servants, at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of thereading of the above provision clearly shows that the notice can be sent by post to the party who is intended to be bound by it. Thus, the notice sent by registered post in the name of the defendant-company who is. the tenant is fully in accordance with the requirement of S. 106 of the Transfer of Property Act.8. So far as the finding recorded by the learned Additional District Judge that the defendants were defaulter in the payment of @page-SC1100 rent and full amount of rent was not paid or deposited on the first date of hearing and no rent was paid month by month during the pendency of the appeal could not be assailed by the learned counsel for the appellants.
| 0 | 2,189 | 451 |
### 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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a letter sent by registered post can be rebutted by the addressee by appearing as witness and stating that he never received such letter. If the acknowledgment due receipt contains the signatures of the addressee himself and the addressee as a witness states that he never received such letter and the acknowledgment due does not bear his signature and such statement of the addressee is believed then it would be a sufficient rebuttal of the presumption drawn against him. The burden would then shift on the plaintiff who wants to rely on such presumption to satisfy the Court by leading oral or documentary evidence to prove the service of such letter on the addressee. This rebuttal by the defendant of the presumption drawn against him would of course depend on the veracity of his statement. The Court in the facts and circumstances of a case may not consider such denial Exhibit 51. It was thus contended that the by the defendant as truthful and in that case such denial alone would not be sufficient. But if there is nothing to disbelieve the statement of the defendant then it would be sufficient rebuttal of the presumption of service of such letter or notice sent to him by registered post." In the present case the plaintiffs had sent a copy of the notice to all the three defendants by registered post. Three postal receipts Exhibits 52, 53 and 54 have been filed in the present case and Exhibit 51, one acknowledgment receipt. As regards Exhibit 51, the defendant No. 2 has appeared in the witness box and has denied his signatures. However, it has not been shown that this acknowledgment receipt was related to which of the three notices sent vide postal receipts Exhibits 52, 53 and 54. The plaintiffs have clearly proved that three notices were sent by registered post and which is clearly borne out from the three postal receipts. Admittedly the premises were taken on rent in the name of the defendant No. 1 namely Kulkarni Patterns Pvt. Ltd. and it is proved that one of the notices by registered post was also sent to the company. It has been admitted by the defendant No. 2 in his statement that the notice was sent on the correct address. The defendant No. 2 in his statement has nowhere stated that no notice had been received by the company. The only denial is in respect of the acknowledgment receipt Exhibit 51 and the only inference which could legitimately be drawn is that in respect of one notice, it was not proved as to who acknowledged the receipt of the notice. We do not approve the following statement of law made by the learned Additional District Judge "that the evidence of the defendant did not show any extraordinary happenings or the events which prevented the following of usual course of business and thus his mere denial has no value." However, in the present case three notices were sent by registered post and one of which was sent in the name of the defendant-company who was the tenant, a presumption can legitimately be drawn that the notice dated 7-8-1980 had been served on the company. There is no rebuttal on behalf of the defendant as regards the notice served on the company and in the facts and circumstances of the present case we hold that notice dated 7-8-1980 sent by registered post was served on the defendant-company. In Green View Radio Service (supra) it was held that the acknowledgment due receipt contained the signature of the addressee himself and the addressee as a witness stated that he never received such letter and the acknowledgment due did not bear his signature and such statement of the addressee if believed then it would be a sufficient rebuttal of the presumption drawn against him. The burden will then shift on the plaintiff who wants to rely on such presumption to satisfy the Court by leading oral or documentary evidence to prove the service of such letter on the addressee. Even applying this statement of law in the facts of the present case, the rebuttal, if any, made by defendant No. 2 can be related only with regard to Exhibit 51 for one notice but not with regard to all the three notices sent by registered post vide Exhibits 52 to 54. Thus, in the facts of the case in hand before us we are fully convinced that the service of notice shall have to be presumed so far as defendant company is concerned and there is no rebuttal to such presumption by the defendant-appeal]ants.7. The requirement of sending notice under S. 12(2) of the Act is to be done in the manner prescribed under paragraph two of S. 106 of the Transfer of Property Act which reads as under: "Every notice under this section must be in writing signed by or on behalf of the person giving it and either be sent by post to the party who is intended to be bound by it or be cndered or delivered personally to such party, or to one of his family or servants, at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property." The reading of the above provision clearly shows that the notice can be sent by post to the party who is intended to be bound by it. Thus, the notice sent by registered post in the name of the defendant-company who is. the tenant is fully in accordance with the requirement of S. 106 of the Transfer of Property Act.8. So far as the finding recorded by the learned Additional District Judge that the defendants were defaulter in the payment of @page-SC1100 rent and full amount of rent was not paid or deposited on the first date of hearing and no rent was paid month by month during the pendency of the appeal could not be assailed by the learned counsel for the appellants.
### Response:
0
### Explanation:
In Green View Radio Service (supra) it was held that the acknowledgment due receipt contained the signature of the addressee himself and the addressee as a witness stated that he never received such letter and the acknowledgment due did not bear his signature and such statement of the addressee if believed then it would be a sufficient rebuttal of the presumption drawn against him. The burden will then shift on the plaintiff who wants to rely on such presumption to satisfy the Court by leading oral or documentary evidence to prove the service of such letter on the addressee. Even applying this statement of law in the facts of the present case, the rebuttal, if any, made by defendant No. 2 can be related only with regard to Exhibit 51 for one notice but not with regard to all the three notices sent by registered post vide Exhibits 52 to 54. Thus, in the facts of the case in hand before us we are fully convinced that the service of notice shall have to be presumed so far as defendant company is concerned and there is no rebuttal to such presumption by the defendant-appeal]ants.7. The requirement of sending notice under S. 12(2) of the Act is to be done in the manner prescribed under paragraph two of S. 106 of the Transfer of Property Act which reads asnotice under this section must be in writing signed by or on behalf of the person giving it and either be sent by post to the party who is intended to be bound by it or be cndered or delivered personally to such party, or to one of his family or servants, at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of thereading of the above provision clearly shows that the notice can be sent by post to the party who is intended to be bound by it. Thus, the notice sent by registered post in the name of the defendant-company who is. the tenant is fully in accordance with the requirement of S. 106 of the Transfer of Property Act.8. So far as the finding recorded by the learned Additional District Judge that the defendants were defaulter in the payment of @page-SC1100 rent and full amount of rent was not paid or deposited on the first date of hearing and no rent was paid month by month during the pendency of the appeal could not be assailed by the learned counsel for the appellants.
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P.SUBRAMANIYAM Vs. UNION OF INDIA
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per the rule position in that year, the direct recruitee was to be placed below the LDCE, as the LDCE selection process is stated as Fasttrack promotion. Respondent No. 4 was placed in the seniority list below the appellant, as respondent No. 4 was appointed in the 25% Direct Recruitment quota. Therefore, respondent No. 4 made a representation dated 12.12.2005 to respondent No. 2 stating, inter alia, that as he was appointed to the post of Chargeman Grade-II in the month of April 2000, much prior to the appellant was promoted and, therefore, there is a mistake in the selection list and he ought to have been placed in the seniority list above the appellant. That vide communication dated 20.12.2005, the representation of respondent No. 4 was rejected on the ground that he has been placed at an appropriate place in the respective seniority list as per the rota-quota rule.2.1 That thereafter respondent No. 4 approached the Central Administrative Tribunal, Madras by way of O.A. No. 161 of 2006. It was the case on behalf of respondent No. 4 before the learned Tribunal that as he was selected for the appointment on the post of Chargeman Grade-II against the LDCE quota also and as he being more meritorious than the appellant, and that if he would have been told with respect to the rota-quota rule and would have been told that a direct recruitee shall be placed below the LDCE promotee and below the promotee who has been promoted in LDCE quota, in that case, he would have opted for the appointment against LDCE quota. It was the case on behalf of respondent No. 4 that he made a representation which ought to have been considered favourably. The O.A. was opposed by the department by submitting that the seniority list has been fixed as per the rota-quota rule. It was also the case on behalf of the department that as respondent No. 4 was appointed in the Direct Recruitment quota, at the relevant time, he did not accept the promotion in the LDCE quota. Therefore, it was prayed to dismiss the O.A.2.2 However, by the judgment and order dated 31.10.2006, the learned Tribunal allowed the said O.A. by observing that as an employee respondent No. 4 was not aware of the quota-rota rule maintained by the department and also how the seniority list will be fixed between the LDCE appointee and direct recruitee and if he had been told that as per the quota-rota rule, the LDCE candidate would rank senior even though he was appointed as direct recruitee four months earlier, he would have definitely accepted the promotion through LDCE quota. The learned Tribunal observed that the department has failed to give proper guidance and advice to one of its employees and therefore he could not be denied of his legitimate right which will have a bearing on his seniority. Consequently, the learned Tribunal directed the department to place the original applicant in the seniority list above the appellant herein and one another.2.3 Feeling aggrieved and dissatisfied with the order of the learned Tribunal, the appellant preferred a writ petition before the High Court and, by the impugned judgment and order, the High Court has dismissed the said writ petition and confirmed the order passed by the learned Tribunal. Hence the original writ petitioner has preferred the present appeal.3. Having heard the learned counsel appearing on behalf of the respective parties and considering the reasons given by the learned Tribunal and confirmed by the High Court, we are of the opinion that both, the High Court as well as the learned Tribunal, have committed a grave error in directing to place the original applicant-respondent No. 4 herein in the seniority list above the appellant herein. It is an admitted position that the appellant herein was promoted to the post of the Chargeman Grade-II in the LDCE quota. It is an admitted position that, as per the rules, the seniority was required to be fixed as per the quota-rota rule and as per the rule position in that year the direct recruitee was to be placed below the LDCE quota, since the LDCE selection process was treated as the Fast Track promotion. It is an admitted position that respondent No. 4 did not accept his appointment/promotion in LDCE quota though selected and offered and he continued his appointment as a direct recruitee. The learned Tribunal as well as the High Court granted the relief to respondent No. 4 on the ground that the department ought to have informed and/or advised the employee with respect to the seniority to be fixed on the basis of rota-quota rule and as the department failed to do so, respondent No. 4 cannot be denied his legitimate right to be placed at an appropriate place in the seniority list, as otherwise also he was selected for a promotion in the LDCE quota also. On the aforesaid terms, the learned Tribunal as well as the High Court are not justified in directing to put respondent No. 4 in the seniority list above the appellant who, in fact, was appointed in the LDCE quota and the respondent No. 4 never accepted his promotion in the LDCE quota. It was for the employee to know the rule. The department was not expected to advise and/or tell the employee about how the seniority will be fixed and/or about the rota-quota rule. As observed above, the fact remains that the appellant was appointed in the LDCE quota and in the very year, respondent No. 4 was appointed as a direct recruitee. As observed hereinabove, as per the rule position in that year, the direct recruitee was to be placed before the LDCE, therefore, respondent No. 4 was rightly placed below the appellant in the seniority list being a direct recruitee. Under the circumstances, both, the High Court as well as the learned Tribunal committed an error in directing to place respondent No. 4 in the seniority list above the appellant.
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1[ds]3. Having heard the learned counsel appearing on behalf of the respective parties and considering the reasons given by the learned Tribunal and confirmed by the High Court, we are of the opinion that both, the High Court as well as the learned Tribunal, have committed a grave error in directing to place the original applicant-respondent No. 4 herein in the seniority list above the appellant herein. It is an admitted position that the appellant herein was promoted to the post of the Chargeman Grade-II in the LDCE quota. It is an admitted position that, as per the rules, the seniority was required to be fixed as per the quota-rota rule and as per the rule position in that year the direct recruitee was to be placed below the LDCE quota, since the LDCE selection process was treated as the Fast Track promotion. It is an admitted position that respondent No. 4 did not accept his appointment/promotion in LDCE quota though selected and offered and he continued his appointment as a direct recruitee. The learned Tribunal as well as the High Court granted the relief to respondent No. 4 on the ground that the department ought to have informed and/or advised the employee with respect to the seniority to be fixed on the basis of rota-quota rule and as the department failed to do so, respondent No. 4 cannot be denied his legitimate right to be placed at an appropriate place in the seniority list, as otherwise also he was selected for a promotion in the LDCE quota also. On the aforesaid terms, the learned Tribunal as well as the High Court are not justified in directing to put respondent No. 4 in the seniority list above the appellant who, in fact, was appointed in the LDCE quota and the respondent No. 4 never accepted his promotion in the LDCE quota. It was for the employee to know the rule. The department was not expected to advise and/or tell the employee about how the seniority will be fixed and/or about the rota-quota rule. As observed above, the fact remains that the appellant was appointed in the LDCE quota and in the very year, respondent No. 4 was appointed as a direct recruitee. As observed hereinabove, as per the rule position in that year, the direct recruitee was to be placed before the LDCE, therefore, respondent No. 4 was rightly placed below the appellant in the seniority list being a direct recruitee. Under the circumstances, both, the High Court as well as the learned Tribunal committed an error in directing to place respondent No. 4 in the seniority list above the appellant.
| 1 | 1,503 | 486 |
### 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:
per the rule position in that year, the direct recruitee was to be placed below the LDCE, as the LDCE selection process is stated as Fasttrack promotion. Respondent No. 4 was placed in the seniority list below the appellant, as respondent No. 4 was appointed in the 25% Direct Recruitment quota. Therefore, respondent No. 4 made a representation dated 12.12.2005 to respondent No. 2 stating, inter alia, that as he was appointed to the post of Chargeman Grade-II in the month of April 2000, much prior to the appellant was promoted and, therefore, there is a mistake in the selection list and he ought to have been placed in the seniority list above the appellant. That vide communication dated 20.12.2005, the representation of respondent No. 4 was rejected on the ground that he has been placed at an appropriate place in the respective seniority list as per the rota-quota rule.2.1 That thereafter respondent No. 4 approached the Central Administrative Tribunal, Madras by way of O.A. No. 161 of 2006. It was the case on behalf of respondent No. 4 before the learned Tribunal that as he was selected for the appointment on the post of Chargeman Grade-II against the LDCE quota also and as he being more meritorious than the appellant, and that if he would have been told with respect to the rota-quota rule and would have been told that a direct recruitee shall be placed below the LDCE promotee and below the promotee who has been promoted in LDCE quota, in that case, he would have opted for the appointment against LDCE quota. It was the case on behalf of respondent No. 4 that he made a representation which ought to have been considered favourably. The O.A. was opposed by the department by submitting that the seniority list has been fixed as per the rota-quota rule. It was also the case on behalf of the department that as respondent No. 4 was appointed in the Direct Recruitment quota, at the relevant time, he did not accept the promotion in the LDCE quota. Therefore, it was prayed to dismiss the O.A.2.2 However, by the judgment and order dated 31.10.2006, the learned Tribunal allowed the said O.A. by observing that as an employee respondent No. 4 was not aware of the quota-rota rule maintained by the department and also how the seniority list will be fixed between the LDCE appointee and direct recruitee and if he had been told that as per the quota-rota rule, the LDCE candidate would rank senior even though he was appointed as direct recruitee four months earlier, he would have definitely accepted the promotion through LDCE quota. The learned Tribunal observed that the department has failed to give proper guidance and advice to one of its employees and therefore he could not be denied of his legitimate right which will have a bearing on his seniority. Consequently, the learned Tribunal directed the department to place the original applicant in the seniority list above the appellant herein and one another.2.3 Feeling aggrieved and dissatisfied with the order of the learned Tribunal, the appellant preferred a writ petition before the High Court and, by the impugned judgment and order, the High Court has dismissed the said writ petition and confirmed the order passed by the learned Tribunal. Hence the original writ petitioner has preferred the present appeal.3. Having heard the learned counsel appearing on behalf of the respective parties and considering the reasons given by the learned Tribunal and confirmed by the High Court, we are of the opinion that both, the High Court as well as the learned Tribunal, have committed a grave error in directing to place the original applicant-respondent No. 4 herein in the seniority list above the appellant herein. It is an admitted position that the appellant herein was promoted to the post of the Chargeman Grade-II in the LDCE quota. It is an admitted position that, as per the rules, the seniority was required to be fixed as per the quota-rota rule and as per the rule position in that year the direct recruitee was to be placed below the LDCE quota, since the LDCE selection process was treated as the Fast Track promotion. It is an admitted position that respondent No. 4 did not accept his appointment/promotion in LDCE quota though selected and offered and he continued his appointment as a direct recruitee. The learned Tribunal as well as the High Court granted the relief to respondent No. 4 on the ground that the department ought to have informed and/or advised the employee with respect to the seniority to be fixed on the basis of rota-quota rule and as the department failed to do so, respondent No. 4 cannot be denied his legitimate right to be placed at an appropriate place in the seniority list, as otherwise also he was selected for a promotion in the LDCE quota also. On the aforesaid terms, the learned Tribunal as well as the High Court are not justified in directing to put respondent No. 4 in the seniority list above the appellant who, in fact, was appointed in the LDCE quota and the respondent No. 4 never accepted his promotion in the LDCE quota. It was for the employee to know the rule. The department was not expected to advise and/or tell the employee about how the seniority will be fixed and/or about the rota-quota rule. As observed above, the fact remains that the appellant was appointed in the LDCE quota and in the very year, respondent No. 4 was appointed as a direct recruitee. As observed hereinabove, as per the rule position in that year, the direct recruitee was to be placed before the LDCE, therefore, respondent No. 4 was rightly placed below the appellant in the seniority list being a direct recruitee. Under the circumstances, both, the High Court as well as the learned Tribunal committed an error in directing to place respondent No. 4 in the seniority list above the appellant.
### Response:
1
### Explanation:
3. Having heard the learned counsel appearing on behalf of the respective parties and considering the reasons given by the learned Tribunal and confirmed by the High Court, we are of the opinion that both, the High Court as well as the learned Tribunal, have committed a grave error in directing to place the original applicant-respondent No. 4 herein in the seniority list above the appellant herein. It is an admitted position that the appellant herein was promoted to the post of the Chargeman Grade-II in the LDCE quota. It is an admitted position that, as per the rules, the seniority was required to be fixed as per the quota-rota rule and as per the rule position in that year the direct recruitee was to be placed below the LDCE quota, since the LDCE selection process was treated as the Fast Track promotion. It is an admitted position that respondent No. 4 did not accept his appointment/promotion in LDCE quota though selected and offered and he continued his appointment as a direct recruitee. The learned Tribunal as well as the High Court granted the relief to respondent No. 4 on the ground that the department ought to have informed and/or advised the employee with respect to the seniority to be fixed on the basis of rota-quota rule and as the department failed to do so, respondent No. 4 cannot be denied his legitimate right to be placed at an appropriate place in the seniority list, as otherwise also he was selected for a promotion in the LDCE quota also. On the aforesaid terms, the learned Tribunal as well as the High Court are not justified in directing to put respondent No. 4 in the seniority list above the appellant who, in fact, was appointed in the LDCE quota and the respondent No. 4 never accepted his promotion in the LDCE quota. It was for the employee to know the rule. The department was not expected to advise and/or tell the employee about how the seniority will be fixed and/or about the rota-quota rule. As observed above, the fact remains that the appellant was appointed in the LDCE quota and in the very year, respondent No. 4 was appointed as a direct recruitee. As observed hereinabove, as per the rule position in that year, the direct recruitee was to be placed before the LDCE, therefore, respondent No. 4 was rightly placed below the appellant in the seniority list being a direct recruitee. Under the circumstances, both, the High Court as well as the learned Tribunal committed an error in directing to place respondent No. 4 in the seniority list above the appellant.
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Singer India Ltd Vs. Chander Mohan Chadha
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shedding its corporate shell, but for all practical purposes remained alive and thriving as part of the larger whole. He has submitted that this Court should lift the corporate veil and see who are the directors and shareholders of the Transferee Company and who are in real control of the affairs of the said company and if it is done it will be evident there has been no sub-letting or parting with possession by the American Company. 14. In Palmers Company Law (24th Edn), in chapter 18, para 2 onwards some instances have been given in which the modern company law disregards the principle that the company is an independent legal entity and also when the Courts would be inclined to lift the corporate veil and the important ones being in relation to the law relating to trading with enemy where the test of control is adopted and also where the device of incorporation is used for some illegal or improper purpose. In Gowers Principle of Modern Company Law (4th Edn), in chapter 6, the topic of lifting the veil has been discussed. The learned author has said that there is no consistent principle beyond a refusal by the legislature and the judiciary to apply the logic of the principle laid down in Solomons case where it is too flagrantly opposed to justice, convenience or the interest of the Revenue. In the cases where veil is lifted, the law either goes behind the corporate personality to the individual members, or ignores the separate personality of each company in favour of the economic entity or ignores the separate personality in favour of the economic entity constituted by a group of associated companies. The principal grounds where such a course of action can be adopted are to protect the interest of the Revenue and also where the corporate personality is being blatantly used as a cloak for fraud or improper conduct. 15. The question of lifting the corporate veil was examined by a Constitution Bench in Tata Engineering and Locomotive Co. Ltd. etc. vs. The State of Bihar and others (AIR 1965 SC 40 ). The Court observed that the doctrine of lifting of the veil postulates the existence of dualism between the corporation or company on the one hand and its members or shareholders on the other. After review of a number of authorities and standard books, the parameters where the said doctrine could be applied were indicated in consonance with the principles indicated in the preceding paragraph. In Delhi Development Authority vs. Skipper Construction Company (P) Ltd. and another AIR 1996 SC 2005 , Mr. Justice B.P. Jeevan Reddy has examined the question in considerable detail and it will be useful to reproduce the relevant paragraph of the judgment which is as under: Para 24. Lifting the corporate veil: In Aron Salomon vs. Salomon & Company Limited (1897) Appeal Case 22), the House of Lords had observed, the company is at law a different person altogether from the subscriber...; and though it may be that after incorporation the business is precisely the same as it was before and the same persons are managers and the same hands received the profits, the company is not in law agent of the subscribers or trustee for them. Nor are the subscribers as members liable, in any shape or form, except to the extent and in the manner provided by that Act. Since then, however, the Courts have come to recognize several exceptions to the said rule. While it is not necessary to refer to all of them, the one relevant to us is when the corporate personality is being blatantly used as a cloak for fraud or improper conduct (Gower: Modern Company Law - 4th Edn. (1979) at P.137) Pennington (Company Law - 5th Edn. 1985 at P.53) also states that where the protection of public interests is of paramount importance or where the company has been formed to evade obligations imposed by the law, the Court will disregard the corporate veil... It was held that, broadly, where a fraud is intended to be prevented, or trading with enemy is sought to be defeated, the veil of corporation is lifted by judicial decisions and the shareholders are held to be persons who actually work for the corporation. The main principle on which such a course of action can be taken was stated in paragraph 28 of the report and the relevant part thereof is being reproduced below: 28. The concept of corporate entity was evolved to encourage and promote trade and commerce but not to commit illegalities or to defraud people. Where, therefore, the corporate character is employed for the purpose of committing illegality or for defrauding others, the Court would ignore the corporate character and will look at the reality behind the corporate veil so as to enable it to pass appropriate orders to do justice between the parties concerned.. 16. However, it has nowhere been held that such a course of action is open to the company itself. It is not open to the Company to ask for unveiling its own cloak and examine as to who are the directors and shareholders and who are in reality controlling the affairs of the Company. This is not the case of the appellant nor could it possibly be that the corporate character is employed for the purpose of committing illegality or defrauding others. It is not open to the appellant to contend that for the purpose of FERA, the American Company has effaced itself and has ceased to exist but for the purpose of Delhi Rent Control Act, it is still in existence. Therefore, it is not possible to hold that it is the American Company which is still in existence and is in possession of the premises in question. On the contrary, the inescapable conclusion is that it is the Indian Company which is in occupation and is carrying on business in the premises in question rendering the appellant liable for eviction.
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0[ds]11. These cases clearly hold that even if there is an order of a Court sanctioning the scheme of amalgamation under Sections 391 and 394 of the Companies Act whereunder the leases, rights of tenancy or occupancy of the Transferor Company get vested in and become the property of the Transferee Company, it would make no difference in so far as the applicability of Section 14(1)(b) is concerned, as the Act does not make any exception in favour of a lessee who may have adopted such a course of action in order to secure compliance of law16. However, it has nowhere been held that such a course of action is open to the company itself. It is not open to the Company to ask for unveiling its own cloak and examine as to who are the directors and shareholders and who are in reality controlling the affairs of the Company. This is not the case of the appellant nor could it possibly be that the corporate character is employed for the purpose of committing illegality or defrauding others. It is not open to the appellant to contend that for the purpose of FERA, the American Company has effaced itself and has ceased to exist but for the purpose of Delhi Rent Control Act, it is still in existence. Therefore, it is not possible to hold that it is the American Company which is still in existence and is in possession of the premises in question. On the contrary, the inescapable conclusion is that it is the Indian Company which is in occupation and is carrying on business in the premises in question rendering the appellant liable for eviction
| 0 | 5,904 | 303 |
### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
shedding its corporate shell, but for all practical purposes remained alive and thriving as part of the larger whole. He has submitted that this Court should lift the corporate veil and see who are the directors and shareholders of the Transferee Company and who are in real control of the affairs of the said company and if it is done it will be evident there has been no sub-letting or parting with possession by the American Company. 14. In Palmers Company Law (24th Edn), in chapter 18, para 2 onwards some instances have been given in which the modern company law disregards the principle that the company is an independent legal entity and also when the Courts would be inclined to lift the corporate veil and the important ones being in relation to the law relating to trading with enemy where the test of control is adopted and also where the device of incorporation is used for some illegal or improper purpose. In Gowers Principle of Modern Company Law (4th Edn), in chapter 6, the topic of lifting the veil has been discussed. The learned author has said that there is no consistent principle beyond a refusal by the legislature and the judiciary to apply the logic of the principle laid down in Solomons case where it is too flagrantly opposed to justice, convenience or the interest of the Revenue. In the cases where veil is lifted, the law either goes behind the corporate personality to the individual members, or ignores the separate personality of each company in favour of the economic entity or ignores the separate personality in favour of the economic entity constituted by a group of associated companies. The principal grounds where such a course of action can be adopted are to protect the interest of the Revenue and also where the corporate personality is being blatantly used as a cloak for fraud or improper conduct. 15. The question of lifting the corporate veil was examined by a Constitution Bench in Tata Engineering and Locomotive Co. Ltd. etc. vs. The State of Bihar and others (AIR 1965 SC 40 ). The Court observed that the doctrine of lifting of the veil postulates the existence of dualism between the corporation or company on the one hand and its members or shareholders on the other. After review of a number of authorities and standard books, the parameters where the said doctrine could be applied were indicated in consonance with the principles indicated in the preceding paragraph. In Delhi Development Authority vs. Skipper Construction Company (P) Ltd. and another AIR 1996 SC 2005 , Mr. Justice B.P. Jeevan Reddy has examined the question in considerable detail and it will be useful to reproduce the relevant paragraph of the judgment which is as under: Para 24. Lifting the corporate veil: In Aron Salomon vs. Salomon & Company Limited (1897) Appeal Case 22), the House of Lords had observed, the company is at law a different person altogether from the subscriber...; and though it may be that after incorporation the business is precisely the same as it was before and the same persons are managers and the same hands received the profits, the company is not in law agent of the subscribers or trustee for them. Nor are the subscribers as members liable, in any shape or form, except to the extent and in the manner provided by that Act. Since then, however, the Courts have come to recognize several exceptions to the said rule. While it is not necessary to refer to all of them, the one relevant to us is when the corporate personality is being blatantly used as a cloak for fraud or improper conduct (Gower: Modern Company Law - 4th Edn. (1979) at P.137) Pennington (Company Law - 5th Edn. 1985 at P.53) also states that where the protection of public interests is of paramount importance or where the company has been formed to evade obligations imposed by the law, the Court will disregard the corporate veil... It was held that, broadly, where a fraud is intended to be prevented, or trading with enemy is sought to be defeated, the veil of corporation is lifted by judicial decisions and the shareholders are held to be persons who actually work for the corporation. The main principle on which such a course of action can be taken was stated in paragraph 28 of the report and the relevant part thereof is being reproduced below: 28. The concept of corporate entity was evolved to encourage and promote trade and commerce but not to commit illegalities or to defraud people. Where, therefore, the corporate character is employed for the purpose of committing illegality or for defrauding others, the Court would ignore the corporate character and will look at the reality behind the corporate veil so as to enable it to pass appropriate orders to do justice between the parties concerned.. 16. However, it has nowhere been held that such a course of action is open to the company itself. It is not open to the Company to ask for unveiling its own cloak and examine as to who are the directors and shareholders and who are in reality controlling the affairs of the Company. This is not the case of the appellant nor could it possibly be that the corporate character is employed for the purpose of committing illegality or defrauding others. It is not open to the appellant to contend that for the purpose of FERA, the American Company has effaced itself and has ceased to exist but for the purpose of Delhi Rent Control Act, it is still in existence. Therefore, it is not possible to hold that it is the American Company which is still in existence and is in possession of the premises in question. On the contrary, the inescapable conclusion is that it is the Indian Company which is in occupation and is carrying on business in the premises in question rendering the appellant liable for eviction.
### Response:
0
### Explanation:
11. These cases clearly hold that even if there is an order of a Court sanctioning the scheme of amalgamation under Sections 391 and 394 of the Companies Act whereunder the leases, rights of tenancy or occupancy of the Transferor Company get vested in and become the property of the Transferee Company, it would make no difference in so far as the applicability of Section 14(1)(b) is concerned, as the Act does not make any exception in favour of a lessee who may have adopted such a course of action in order to secure compliance of law16. However, it has nowhere been held that such a course of action is open to the company itself. It is not open to the Company to ask for unveiling its own cloak and examine as to who are the directors and shareholders and who are in reality controlling the affairs of the Company. This is not the case of the appellant nor could it possibly be that the corporate character is employed for the purpose of committing illegality or defrauding others. It is not open to the appellant to contend that for the purpose of FERA, the American Company has effaced itself and has ceased to exist but for the purpose of Delhi Rent Control Act, it is still in existence. Therefore, it is not possible to hold that it is the American Company which is still in existence and is in possession of the premises in question. On the contrary, the inescapable conclusion is that it is the Indian Company which is in occupation and is carrying on business in the premises in question rendering the appellant liable for eviction
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Extrusion Processes Private Limited Vs. Jivabhai Marghabhai Patel
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the matter came on board, affidavits were filed on behalf of the company to show cause. Affidavits in rejoinder were filed by the petitioning shareholder and also the other shareholders including a director who was according to his allegation excluded from management. Mr. Justice Kantawala felt that we had heard the company and that we had already admitted the petition. He, therefore, directed advertisements. It is against this order that the present appeal is brought. ( 4 ) MR. Parpia argues that by our order we only accepted the petition and that before it is admitted it should be heard on merits, i. e. , the company ought to be heard and as Mr. Justice kantawala did not hear all the arguments of the company before admitting the petition, the order is bad. In support Mr. Parpia relies upon Western India Theatres v. Associated Bombay Cinemas ([1959] 29 Comp. Cas. 127; [1956] 60 Bom. L. R. 1240), a decision regarding the practice followed in such matters by this court before the Act was amended and new rules were made. ( 5 ) THE question is of importance for obvious reasons. If the contention is accepted it would mean that there would be appeal from order admitting a petition, appeal from an order of advertisement and appeal from the final order. In between, there may be other appeals. We must, therefore, carefully examine the provisions of the Act and the Rules. ( 6 ) SECTION 439 relates to the making of the winding up petitions and enumerates the persons or classes of persons who are entitled to make a petition. Section 442 relates to the powers of the court in a winding up petition to stay any proceedings pending in any other court. Section 443 defines the powers of the court on hearing the petition. There is no provision in the Act dealing with procedural matters in relation to winding up petitions. This is left to rules to be made under section 643 of the Act to which we must now turn. ( 7 ) PART I of the Company (Court) Rules deals generally with applications. Rule 11 requires that applications made under the sections there referred to shall be made by petition, one of the sections being section 439. Rule 27 relates to the form and time of service of the notice. Rule 28 requires in case petition is presented against company that it shall be accompanied by a notice in the prescribed form together with a copy of the petition and a stamped envelop addressed to the company and that : "the Registrar shall immediately on the admission of the petition send the notice together with the copy of the petition to the company by registered post. "( 8 ) PART III deals with winding up petitions. Rule 95 relates to the form of the petition and rule 96 relates to admission of petition and directions as to advertisement. Rule 99 requires that subject to the directions of the court, the petition shall be advertised as provided by rule 24 in Form No. 48. Rule 96 directs that after the petition is filed, it shall be posted before the judge in chambers for admission of the petition and fixing a date for the hearing thereof and for directions as to the advertisements to be published and the persons, if any, upon whom copies of the petition are to be served and the judge may, if he thinks fit, direct notice to be given to the company before giving directions as to the advertisement of the petition. A plain reading of the rule indicates that there is no right in a company to be issued a notice before a petition is admitted nor before the court fixes the date of hearing. As to giving of notice to the company before giving directions regarding advertisements there is a discretion left in the court. It is true that if the judge is not satisfied on reading the petition itself regarding the grounds for winding up he would be entitled to reject the same. There can, however, be no question of hearing the company at the stage of admission. ( 9 ) IN response to the notice under rule 96 the company may show cause why the petition should not be proceeded with or rejected. But then this could only be on grounds which do not involve facts. In the case referred to, at page 1242, the learned Chief Justice says while considering rule 733 of the old Rules :". . . In the winding up of a company the creditors are interested, the shareholders are interested, and therefore it is nut right that before the court makes a final order on the petition these parties should be heard. But that does not mean that the discretion of the court is taken away to dismiss a petition at an early stage if no answer is called for on the merits of the petition. If this is clearly borne in mind, then the practice followed by this court is a perfectly proper practice. . . . "( 10 ) THE subsequent observations of the court have to be read in the light of this principle. It is possible, therefore, that in response to such a notice the company may be able to show that the application does not lie or that without going into the merits the application ought to be dismissed and this is what is pointed out by the learned Chief Justice in the next paragraph of the judgment. He says (page 1242) : "in answer to the notice all that the respondent is entitled to urge is that for any justifiable reason the petition should not be proceed with and further steps should not be taken. "( 11 ) MR. Parpias contention that before admission of the petition the company ought to be heard cannot possibly be supported. Out reader, therefore, rightly admits the petition. We had only postponed the advertisement.
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1[ds]( 10 ) THE subsequent observations of the court have to be read in the light of this principle. It is possible, therefore, that in response to such a notice the company may be able to show that the application does not lie or that without going into the merits the application ought to be dismissed and this is what is pointed out by the learned Chief Justice in the next paragraph of the judgment. He says (page 1242) : "in answer to the notice all that the respondent is entitled to urge is that for any justifiable reason the petition should not be proceed with and further steps should not be taken. "( 11 ) MR. Parpias contention that before admission of the petition the company ought to be heard cannot possibly be supported. Out reader, therefore, rightly admits the petition. We had only postponed the advertisement.
| 1 | 1,318 | 167 |
### 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:
the matter came on board, affidavits were filed on behalf of the company to show cause. Affidavits in rejoinder were filed by the petitioning shareholder and also the other shareholders including a director who was according to his allegation excluded from management. Mr. Justice Kantawala felt that we had heard the company and that we had already admitted the petition. He, therefore, directed advertisements. It is against this order that the present appeal is brought. ( 4 ) MR. Parpia argues that by our order we only accepted the petition and that before it is admitted it should be heard on merits, i. e. , the company ought to be heard and as Mr. Justice kantawala did not hear all the arguments of the company before admitting the petition, the order is bad. In support Mr. Parpia relies upon Western India Theatres v. Associated Bombay Cinemas ([1959] 29 Comp. Cas. 127; [1956] 60 Bom. L. R. 1240), a decision regarding the practice followed in such matters by this court before the Act was amended and new rules were made. ( 5 ) THE question is of importance for obvious reasons. If the contention is accepted it would mean that there would be appeal from order admitting a petition, appeal from an order of advertisement and appeal from the final order. In between, there may be other appeals. We must, therefore, carefully examine the provisions of the Act and the Rules. ( 6 ) SECTION 439 relates to the making of the winding up petitions and enumerates the persons or classes of persons who are entitled to make a petition. Section 442 relates to the powers of the court in a winding up petition to stay any proceedings pending in any other court. Section 443 defines the powers of the court on hearing the petition. There is no provision in the Act dealing with procedural matters in relation to winding up petitions. This is left to rules to be made under section 643 of the Act to which we must now turn. ( 7 ) PART I of the Company (Court) Rules deals generally with applications. Rule 11 requires that applications made under the sections there referred to shall be made by petition, one of the sections being section 439. Rule 27 relates to the form and time of service of the notice. Rule 28 requires in case petition is presented against company that it shall be accompanied by a notice in the prescribed form together with a copy of the petition and a stamped envelop addressed to the company and that : "the Registrar shall immediately on the admission of the petition send the notice together with the copy of the petition to the company by registered post. "( 8 ) PART III deals with winding up petitions. Rule 95 relates to the form of the petition and rule 96 relates to admission of petition and directions as to advertisement. Rule 99 requires that subject to the directions of the court, the petition shall be advertised as provided by rule 24 in Form No. 48. Rule 96 directs that after the petition is filed, it shall be posted before the judge in chambers for admission of the petition and fixing a date for the hearing thereof and for directions as to the advertisements to be published and the persons, if any, upon whom copies of the petition are to be served and the judge may, if he thinks fit, direct notice to be given to the company before giving directions as to the advertisement of the petition. A plain reading of the rule indicates that there is no right in a company to be issued a notice before a petition is admitted nor before the court fixes the date of hearing. As to giving of notice to the company before giving directions regarding advertisements there is a discretion left in the court. It is true that if the judge is not satisfied on reading the petition itself regarding the grounds for winding up he would be entitled to reject the same. There can, however, be no question of hearing the company at the stage of admission. ( 9 ) IN response to the notice under rule 96 the company may show cause why the petition should not be proceeded with or rejected. But then this could only be on grounds which do not involve facts. In the case referred to, at page 1242, the learned Chief Justice says while considering rule 733 of the old Rules :". . . In the winding up of a company the creditors are interested, the shareholders are interested, and therefore it is nut right that before the court makes a final order on the petition these parties should be heard. But that does not mean that the discretion of the court is taken away to dismiss a petition at an early stage if no answer is called for on the merits of the petition. If this is clearly borne in mind, then the practice followed by this court is a perfectly proper practice. . . . "( 10 ) THE subsequent observations of the court have to be read in the light of this principle. It is possible, therefore, that in response to such a notice the company may be able to show that the application does not lie or that without going into the merits the application ought to be dismissed and this is what is pointed out by the learned Chief Justice in the next paragraph of the judgment. He says (page 1242) : "in answer to the notice all that the respondent is entitled to urge is that for any justifiable reason the petition should not be proceed with and further steps should not be taken. "( 11 ) MR. Parpias contention that before admission of the petition the company ought to be heard cannot possibly be supported. Out reader, therefore, rightly admits the petition. We had only postponed the advertisement.
### Response:
1
### Explanation:
( 10 ) THE subsequent observations of the court have to be read in the light of this principle. It is possible, therefore, that in response to such a notice the company may be able to show that the application does not lie or that without going into the merits the application ought to be dismissed and this is what is pointed out by the learned Chief Justice in the next paragraph of the judgment. He says (page 1242) : "in answer to the notice all that the respondent is entitled to urge is that for any justifiable reason the petition should not be proceed with and further steps should not be taken. "( 11 ) MR. Parpias contention that before admission of the petition the company ought to be heard cannot possibly be supported. Out reader, therefore, rightly admits the petition. We had only postponed the advertisement.
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Hitech Eletrothermics and Hydropower Limited Vs. State of Kerala & Others
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same, the Board having not taken any steps to see that the power supply is given to the appellants premises and it is for such non supply of power, the commercial production being delayed, it will be un-equitable to deny the concessional tariff flowing from the policy resolution of the government. Mr. Salve contended that under S.22 of the Indian Electricity Act, 1910, the Board is responsible to supply power on the terms and conditions of the licence and the said Board having allocated the power in favour of the appellant on 7.11.95 and thereafter their being no power connection until 1998, it cannot deny the benefit flowing from the policy resolution of the government which was adopted by the Board in its letter dated 27th of March, 1992. According to Mr. Salve, the Board cannot be permitted to prevent the benefit of an incentive policy by its own failure to provide power, which prevented the appellant from starting commercial production by 31.12.1996. Mr. Salve relying upon the judgment of this court in Pawan Alloys and Casting Pvt. Ltd., . U.P. State Electricity Board and Ors., (1997) 7 SCC 251, contended that when the appellant was persuaded to set up the industry being lured by incentive of getting the concessional power tariff for a period of five years, ought not to be denied that relief on construing the power policy and literally no such concessional tariff could be granted unless commercial production starts before 31.12.96. 4. Mr. Rohtagi, the learned Additional Solicitor General, appearing for the State of Kerala as well as on behalf of the Board, vehemently argued that the language of the policy issued by the Government and adopted by the State Electricity Board was unequivocal and such policy clearly stipulated that only those units which would start commercial production between 1.1.92 and 31.12.96 would be entitled to the concessional tariff indicated in the policy. Since admittedly the appellants manufacturing unit did not start commercial production within the stipulated period, the benefit of the concessional tariff under the policy has rightly been denied and the impugned judgment does not suffer from any infirmity. According to Mr. Rohtagi, even if for certain latches on the part of the Board, the appellant may be entitled to an equitable consideration, but in the matter of incentive granted under the policy decision by the government, no manufacturing unit can claim the benefit, so long as the conditions precedent of the applicability of policy resolution have not been satisfied. Mr. Rohtagi also contended that there might have been some latches on the part of the Board in its failure to provide power connection in time, but the same is not one-sided and even the appellant himself was not in a position to start commercial production within the stipulated date. Mr. Rohtagi also urged that since there has been no finding of the Division Bench of the High Court, as to who was at fault and if so, to what extent on which equities could be worked out, the matter could be remanded back to the High Court for re-adjudication. Mr. Rohtagi, however to the suggestion from the Court finally agreed that the appeal can be disposed of on equitable consideration by this Court by reducing the period for which concessional tariff could be given to the appellant. 5. On perusal of the industrial policy of the government, unequivocally indicting that concessional tariff rate would be given as well as the order of the Electricity Board adopting the same, it can be safely held that such concession could be availed of by the industrial units for a period of five years from the date, commercial production which start such production in between 1.1.92 and 31.12.1996. In this context the stand of the Board as well as the State Government cannot be held to be devoid of any substance when admittedly the commercial production of the appellants unit did not start till 31.12.96. But the question for consideration is when the government has itself come forward alluring industrial units to set up their industries and when under the provisions of the Electricity Act, every consumer has the right to get the supply of power and in the case in hand, when power allocation has been made in favour of the appellant as early as in 1995, and yet the same power could not be supplied for such non supply of power, the commercial production could not start by 31.12.96, would it at all be equitable to deny the relief to the appellant by giving a literal interpretation to the incentive scheme of the government as adopted by the Board? Our answer to this question must be in the negative. There are several documents on record, which were produced before us to indicate that the appellant has been communicating with the Board, seeking power connection at an early date so that it would be able to start commercial production by 31.12.96. In making such communication, the appellant has been bringing it to the notice of the Board but for supply, the appellant has made all other arrangements to set the production, but yet there has been inaction on the part of the Board in providing power to the appellant. Mr. Rohtagi, appearing for the Board no doubt brought to our notice a letter from the appellant to the Board and contended that it could not have been possible for the appellant to start production by 31.12.96 but we are unable to accept this submission nor are we making deeper probe into the matter. Suffice it to say that the appellant has been denied power supply by the Board in appropriate time, which has prevented the appellant from starting the commercial production by 31.12.96. This being the position, and having regard to the gamut of the circumstances, starting from the government policy resolution and culminating in setting up of the factory by the appellant in Kerala and commensurate the production of ferro alloys, though not by 31.12.96,
|
1[ds]5. On perusal of the industrial policy of the government, unequivocally indicting that concessional tariff rate would be given as well as the order of the Electricity Board adopting the same, it can be safely held that such concession could be availed of by the industrial units for a period of five years from the date, commercial production which start such production in between 1.1.92 and 31.12.1996. In this context the stand of the Board as well as the State Government cannot be held to be devoid of any substance when admittedly the commercial production of the appellants unit did not start till 31.12.96. But the question for consideration is when the government has itself come forward alluring industrial units to set up their industries and when under the provisions of the Electricity Act, every consumer has the right to get the supply of power and in the case in hand, when power allocation has been made in favour of the appellant as early as in 1995, and yet the same power could not be supplied for such non supply of power, the commercial production could not start by 31.12.96, would it at all be equitable to deny the relief to the appellant by giving a literal interpretation to the incentive scheme of the government as adopted by the Board? Our answer to this question must be in the negative. There are several documents on record, which were produced before us to indicate that the appellant has been communicating with the Board, seeking power connection at an early date so that it would be able to start commercial production by 31.12.96. In making such communication, the appellant has been bringing it to the notice of the Board but for supply, the appellant has made all other arrangements to set the production, but yet there has been inaction on the part of the Board in providing power to the appellant. Mr. Rohtagi, appearing for the Board no doubt brought to our notice a letter from the appellant to the Board and contended that it could not have been possible for the appellant to start production by 31.12.96 but we are unable to accept this submission nor are we making deeper probe into the matter. Suffice it to say that the appellant has been denied power supply by the Board in appropriate time, which has prevented the appellant from starting the commercial production by 31.12.96. This being the position, and having regard to the gamut of the circumstances, starting from the government policy resolution and culminating in setting up of the factory by the appellant in Kerala and commensurate the production of ferro alloys, though not by 31.12.96,
| 1 | 2,316 | 479 |
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same, the Board having not taken any steps to see that the power supply is given to the appellants premises and it is for such non supply of power, the commercial production being delayed, it will be un-equitable to deny the concessional tariff flowing from the policy resolution of the government. Mr. Salve contended that under S.22 of the Indian Electricity Act, 1910, the Board is responsible to supply power on the terms and conditions of the licence and the said Board having allocated the power in favour of the appellant on 7.11.95 and thereafter their being no power connection until 1998, it cannot deny the benefit flowing from the policy resolution of the government which was adopted by the Board in its letter dated 27th of March, 1992. According to Mr. Salve, the Board cannot be permitted to prevent the benefit of an incentive policy by its own failure to provide power, which prevented the appellant from starting commercial production by 31.12.1996. Mr. Salve relying upon the judgment of this court in Pawan Alloys and Casting Pvt. Ltd., . U.P. State Electricity Board and Ors., (1997) 7 SCC 251, contended that when the appellant was persuaded to set up the industry being lured by incentive of getting the concessional power tariff for a period of five years, ought not to be denied that relief on construing the power policy and literally no such concessional tariff could be granted unless commercial production starts before 31.12.96. 4. Mr. Rohtagi, the learned Additional Solicitor General, appearing for the State of Kerala as well as on behalf of the Board, vehemently argued that the language of the policy issued by the Government and adopted by the State Electricity Board was unequivocal and such policy clearly stipulated that only those units which would start commercial production between 1.1.92 and 31.12.96 would be entitled to the concessional tariff indicated in the policy. Since admittedly the appellants manufacturing unit did not start commercial production within the stipulated period, the benefit of the concessional tariff under the policy has rightly been denied and the impugned judgment does not suffer from any infirmity. According to Mr. Rohtagi, even if for certain latches on the part of the Board, the appellant may be entitled to an equitable consideration, but in the matter of incentive granted under the policy decision by the government, no manufacturing unit can claim the benefit, so long as the conditions precedent of the applicability of policy resolution have not been satisfied. Mr. Rohtagi also contended that there might have been some latches on the part of the Board in its failure to provide power connection in time, but the same is not one-sided and even the appellant himself was not in a position to start commercial production within the stipulated date. Mr. Rohtagi also urged that since there has been no finding of the Division Bench of the High Court, as to who was at fault and if so, to what extent on which equities could be worked out, the matter could be remanded back to the High Court for re-adjudication. Mr. Rohtagi, however to the suggestion from the Court finally agreed that the appeal can be disposed of on equitable consideration by this Court by reducing the period for which concessional tariff could be given to the appellant. 5. On perusal of the industrial policy of the government, unequivocally indicting that concessional tariff rate would be given as well as the order of the Electricity Board adopting the same, it can be safely held that such concession could be availed of by the industrial units for a period of five years from the date, commercial production which start such production in between 1.1.92 and 31.12.1996. In this context the stand of the Board as well as the State Government cannot be held to be devoid of any substance when admittedly the commercial production of the appellants unit did not start till 31.12.96. But the question for consideration is when the government has itself come forward alluring industrial units to set up their industries and when under the provisions of the Electricity Act, every consumer has the right to get the supply of power and in the case in hand, when power allocation has been made in favour of the appellant as early as in 1995, and yet the same power could not be supplied for such non supply of power, the commercial production could not start by 31.12.96, would it at all be equitable to deny the relief to the appellant by giving a literal interpretation to the incentive scheme of the government as adopted by the Board? Our answer to this question must be in the negative. There are several documents on record, which were produced before us to indicate that the appellant has been communicating with the Board, seeking power connection at an early date so that it would be able to start commercial production by 31.12.96. In making such communication, the appellant has been bringing it to the notice of the Board but for supply, the appellant has made all other arrangements to set the production, but yet there has been inaction on the part of the Board in providing power to the appellant. Mr. Rohtagi, appearing for the Board no doubt brought to our notice a letter from the appellant to the Board and contended that it could not have been possible for the appellant to start production by 31.12.96 but we are unable to accept this submission nor are we making deeper probe into the matter. Suffice it to say that the appellant has been denied power supply by the Board in appropriate time, which has prevented the appellant from starting the commercial production by 31.12.96. This being the position, and having regard to the gamut of the circumstances, starting from the government policy resolution and culminating in setting up of the factory by the appellant in Kerala and commensurate the production of ferro alloys, though not by 31.12.96,
### Response:
1
### Explanation:
5. On perusal of the industrial policy of the government, unequivocally indicting that concessional tariff rate would be given as well as the order of the Electricity Board adopting the same, it can be safely held that such concession could be availed of by the industrial units for a period of five years from the date, commercial production which start such production in between 1.1.92 and 31.12.1996. In this context the stand of the Board as well as the State Government cannot be held to be devoid of any substance when admittedly the commercial production of the appellants unit did not start till 31.12.96. But the question for consideration is when the government has itself come forward alluring industrial units to set up their industries and when under the provisions of the Electricity Act, every consumer has the right to get the supply of power and in the case in hand, when power allocation has been made in favour of the appellant as early as in 1995, and yet the same power could not be supplied for such non supply of power, the commercial production could not start by 31.12.96, would it at all be equitable to deny the relief to the appellant by giving a literal interpretation to the incentive scheme of the government as adopted by the Board? Our answer to this question must be in the negative. There are several documents on record, which were produced before us to indicate that the appellant has been communicating with the Board, seeking power connection at an early date so that it would be able to start commercial production by 31.12.96. In making such communication, the appellant has been bringing it to the notice of the Board but for supply, the appellant has made all other arrangements to set the production, but yet there has been inaction on the part of the Board in providing power to the appellant. Mr. Rohtagi, appearing for the Board no doubt brought to our notice a letter from the appellant to the Board and contended that it could not have been possible for the appellant to start production by 31.12.96 but we are unable to accept this submission nor are we making deeper probe into the matter. Suffice it to say that the appellant has been denied power supply by the Board in appropriate time, which has prevented the appellant from starting the commercial production by 31.12.96. This being the position, and having regard to the gamut of the circumstances, starting from the government policy resolution and culminating in setting up of the factory by the appellant in Kerala and commensurate the production of ferro alloys, though not by 31.12.96,
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Union Of India Vs. Karam Ch.Thapar&Brs.(Coal Sales)Ltd&Ors
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a suit for the recovery of money the defendant claims to set-off against the plaintiffs demand any ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court, and both parties fill the same character as they fill in the plaintiffs suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, present a written statement containing the particulars of the debt sought to be set-off." 18. What the rule deals with is legal set-off. The claim sought to be set-off must be for an ascertained sum of money and legally recoverable by the claimant. What is more significant is that both the parties must fill the same character in respect of the two claims sought to be set-off or adjusted. Apart from the rule enacted in Rule 6 abovesaid there exists a right to set-off, called equitable, independently of the provisions of the Code. Such mutual debts and credits or cross-demands, to be available for extinction by way of equitable set-off, must have arisen out of the same transaction or ought to be so connected in their nature and circumstances as to make it inequitable for the Court to allow the claim before it and leave the defendant high and dry for the present unless he files a cross-suit of his own. When a plea in the nature of equitable set-off is raised it is not done as of right and the discretion lies with the Court to entertain and allow such plea or not to do so. 19. In Bhupendra Narain Singha Bahadur vs. Bahadur Singh and others - AIR 1952 SC 201 , this Court ruled that a plea in the nature of equitable set-off is not available when the cross-demands do not arise out of the same transaction. A wrong-doer who has wrongfully withheld monies belonging to another cannot invoke any principle of equity in his favour and seek to deduct therefrom the amounts which may have fallen due to him. There would be nothing improper or unjust in telling the wrong-doer to undo his wrong and not to take advantage of it. 20. In the present case, what the Coal Company has sought to enforce is a statutory obligation of the appellant-Union of India. The Coal Mines (Conservation and Development) Act, 1974 has a public purpose and a beneficial object to achieve. The stowing assistance is released to the Coal Company in the interest of securing safety at the coal mines and the development thereof. In the absence of stowing, there may be accidents, casualties and difficulties of operation. Non-payment of stowing allowance may discourage the coal mines from carrying out the stowing operations which would be detrimental to the interest of the workers. It would not be sound exercise of discretion on the part of the Court to permit set-off or recognize an adjustment made out-of-Court which would have the effect of withholding the release of stowing assistance and appropriating the amount thereof for the recovery of dues not arising out of the same transaction.21. Shri Jaideep Gupta, the learned senior counsel for the Coal Company, has rightly relied on the decision of Calcutta High Court in Coal Products Pvt. Ltd. and Anr. vs. Income-Tax Officer, "M" Ward, Companies District II, Calcutta, and others - (1972) 85 ITR 347 , wherein a garnishee order was quashed. It was held that the money which is payable by the Coal Board to a Coal Company as and by way of stowing assistance was not available to be paid by the Coal Board to Income-Tax Department for recovery of income-tax dues as that would result in breach of statutory obligation of the Board with regard to the utilization of its fund as laid down in Section 12 of the Act as also in breach of statutory obligation of the Coal Company attaching to the grant of assistance from the Coal Board. Rule 49 referred to hereinabove came up for the consideration of this Court in Industrial Supplies Pvt. Ltd. and Anr. vs. Union of India and others (1980) 4 SCC 341 , in some other context. Vide para 32, this Court observed that if the subsidy receivable from the Coal Board (succeeded by the Central Government) was by way of assistance, the granting being conditional, the recipient thereof would be bound to apply the same for the purposes for which it was granted viz. for the purpose of stowing or other safety operations and conservation of coal mines. In our opinion, in the facts and circumstances of the present case it would not make any difference whether the amount withheld by the Central Government is on account of assistance or reimbursement; in either case the Could would not hold in favour of adjustment being made by the Central Government by setting off the outstanding credit referable to stowing assistance as against the outstanding demand of arrears of royalty.22. In our opinion, the High Court has not erred in allowing the writ petition filed by the respondent-Coal Company.23. So far as the finding recorded in its appellate judgment by the Division Bench that the Central Government is not entitled to recover the royalty and it is the State of Bihar which only is entitled to demand and recover the royalty from the respondent-Coal Company is concerned, we set-aside that finding but without recording any opinion of ours on that aspect for the short reason that such issue is not required to be adjudicated upon in the present case in view of the finding arrived at hereinabove. We hasten to add that requisite pleadings and necessary material are also not available on record to arrive at a definite finding in that regard.24. Before parting we make it clear that the appellant or the State of Bihar, as the case may be, is free to recover arrears of royalty by adopting such other method as may be available under the law.
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0[ds]n our opinion, in the facts and circumstances of the present case it would not make any difference whether the amount withheld by the Central Government is on account of assistance or reimbursement; in either case the Could would not hold in favour of adjustment being made by the Central Government by setting off the outstanding credit referable to stowing assistance as against the outstanding demand of arrears of royalty.22. In our opinion, the High Court has not erred in allowing the writ petition filed by the respondent-Coal Company.23. So far as the finding recorded in its appellate judgment by the Division Bench that the Central Government is not entitled to recover the royalty and it is the State of Bihar which only is entitled to demand and recover the royalty from the respondent-Coal Company is concerned, we set-aside that finding but without recording any opinion of ours on that aspect for the short reason that such issue is not required to be adjudicated upon in the present case in view of the finding arrived at hereinabove. We hasten to add that requisite pleadings and necessary material are also not available on record to arrive at a definite finding in that regard.24. Before parting we make it clear that the appellant or the State of Bihar, as the case may be, is free to recover arrears of royalty by adopting such other method as may be available under the law.
| 0 | 4,052 | 255 |
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a suit for the recovery of money the defendant claims to set-off against the plaintiffs demand any ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court, and both parties fill the same character as they fill in the plaintiffs suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, present a written statement containing the particulars of the debt sought to be set-off." 18. What the rule deals with is legal set-off. The claim sought to be set-off must be for an ascertained sum of money and legally recoverable by the claimant. What is more significant is that both the parties must fill the same character in respect of the two claims sought to be set-off or adjusted. Apart from the rule enacted in Rule 6 abovesaid there exists a right to set-off, called equitable, independently of the provisions of the Code. Such mutual debts and credits or cross-demands, to be available for extinction by way of equitable set-off, must have arisen out of the same transaction or ought to be so connected in their nature and circumstances as to make it inequitable for the Court to allow the claim before it and leave the defendant high and dry for the present unless he files a cross-suit of his own. When a plea in the nature of equitable set-off is raised it is not done as of right and the discretion lies with the Court to entertain and allow such plea or not to do so. 19. In Bhupendra Narain Singha Bahadur vs. Bahadur Singh and others - AIR 1952 SC 201 , this Court ruled that a plea in the nature of equitable set-off is not available when the cross-demands do not arise out of the same transaction. A wrong-doer who has wrongfully withheld monies belonging to another cannot invoke any principle of equity in his favour and seek to deduct therefrom the amounts which may have fallen due to him. There would be nothing improper or unjust in telling the wrong-doer to undo his wrong and not to take advantage of it. 20. In the present case, what the Coal Company has sought to enforce is a statutory obligation of the appellant-Union of India. The Coal Mines (Conservation and Development) Act, 1974 has a public purpose and a beneficial object to achieve. The stowing assistance is released to the Coal Company in the interest of securing safety at the coal mines and the development thereof. In the absence of stowing, there may be accidents, casualties and difficulties of operation. Non-payment of stowing allowance may discourage the coal mines from carrying out the stowing operations which would be detrimental to the interest of the workers. It would not be sound exercise of discretion on the part of the Court to permit set-off or recognize an adjustment made out-of-Court which would have the effect of withholding the release of stowing assistance and appropriating the amount thereof for the recovery of dues not arising out of the same transaction.21. Shri Jaideep Gupta, the learned senior counsel for the Coal Company, has rightly relied on the decision of Calcutta High Court in Coal Products Pvt. Ltd. and Anr. vs. Income-Tax Officer, "M" Ward, Companies District II, Calcutta, and others - (1972) 85 ITR 347 , wherein a garnishee order was quashed. It was held that the money which is payable by the Coal Board to a Coal Company as and by way of stowing assistance was not available to be paid by the Coal Board to Income-Tax Department for recovery of income-tax dues as that would result in breach of statutory obligation of the Board with regard to the utilization of its fund as laid down in Section 12 of the Act as also in breach of statutory obligation of the Coal Company attaching to the grant of assistance from the Coal Board. Rule 49 referred to hereinabove came up for the consideration of this Court in Industrial Supplies Pvt. Ltd. and Anr. vs. Union of India and others (1980) 4 SCC 341 , in some other context. Vide para 32, this Court observed that if the subsidy receivable from the Coal Board (succeeded by the Central Government) was by way of assistance, the granting being conditional, the recipient thereof would be bound to apply the same for the purposes for which it was granted viz. for the purpose of stowing or other safety operations and conservation of coal mines. In our opinion, in the facts and circumstances of the present case it would not make any difference whether the amount withheld by the Central Government is on account of assistance or reimbursement; in either case the Could would not hold in favour of adjustment being made by the Central Government by setting off the outstanding credit referable to stowing assistance as against the outstanding demand of arrears of royalty.22. In our opinion, the High Court has not erred in allowing the writ petition filed by the respondent-Coal Company.23. So far as the finding recorded in its appellate judgment by the Division Bench that the Central Government is not entitled to recover the royalty and it is the State of Bihar which only is entitled to demand and recover the royalty from the respondent-Coal Company is concerned, we set-aside that finding but without recording any opinion of ours on that aspect for the short reason that such issue is not required to be adjudicated upon in the present case in view of the finding arrived at hereinabove. We hasten to add that requisite pleadings and necessary material are also not available on record to arrive at a definite finding in that regard.24. Before parting we make it clear that the appellant or the State of Bihar, as the case may be, is free to recover arrears of royalty by adopting such other method as may be available under the law.
### Response:
0
### Explanation:
n our opinion, in the facts and circumstances of the present case it would not make any difference whether the amount withheld by the Central Government is on account of assistance or reimbursement; in either case the Could would not hold in favour of adjustment being made by the Central Government by setting off the outstanding credit referable to stowing assistance as against the outstanding demand of arrears of royalty.22. In our opinion, the High Court has not erred in allowing the writ petition filed by the respondent-Coal Company.23. So far as the finding recorded in its appellate judgment by the Division Bench that the Central Government is not entitled to recover the royalty and it is the State of Bihar which only is entitled to demand and recover the royalty from the respondent-Coal Company is concerned, we set-aside that finding but without recording any opinion of ours on that aspect for the short reason that such issue is not required to be adjudicated upon in the present case in view of the finding arrived at hereinabove. We hasten to add that requisite pleadings and necessary material are also not available on record to arrive at a definite finding in that regard.24. Before parting we make it clear that the appellant or the State of Bihar, as the case may be, is free to recover arrears of royalty by adopting such other method as may be available under the law.
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National Insurance Co. Ltd Vs. Nipha Exports Pvt. Ltd
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the loss or damage suffered by the goods to the extent of actual cost of repairs, replacement and conditions effected and incurred. The complainant was also claiming that they had incurred out of pocket expenses and, therefore, the appellant was asking them to provide and furnish the necessary bills in support of total expenses incurred by them, which they failed to do and therefore, the matter was again referred to M/s Webster & Co. for making the investigation into the possible cost involved from M/s Nipha and their local suppliers, respondent herein. 6. Ultimately, M/s Webster by its letter dated 8.4.1994 settled the claim on the basis of consignment as done by the Surveyors. 7. In the facts and circumstances, as recited above, it cannot be said that prior to the letter dated 8.4.1994 the claim had been finally settled and the payment was withheld by the appellant. After the settlement of the amount US $279158.40 equivalent to Rs.70,38,038/- was paid to the respondent on 8.6.1994. The respondent received the aforesaid amount and gave a clean discharge to the appellant without any qualification, signifying receipt of the amount in full and final settlement of the claim. 8. Mr.Mahendra Anand, learned senior counsel, appearing on behalf of the respondent, referred to a letter dated 17.3.1991 and submitted that by the aforesaid letter right, title and interest was vested with M/s Nipha Exports Private Ltd. by Sudan Gezire Rehabilitation Project. In the letter aforesaid, it is stated that they have no objection to settle the claim in favour of M/s Nipha Exports Private Ltd., and advised to address the correspondence direct to them in future. It is his contention that there is no explanation whatsoever by the appellant for withholding the payment from 17.3.1991 to 8.4.1994, the date on which the matter was settled. In view of the circumstances, as recited above, we are unable to accept this contention. From the letter dated 17.3.1991, it is clear that it was not the settlement of the claim but it was a no objection certificate that the claim may be settled in favour of the respondent and advise that all future correspondence be addressed to them directly. 9. Therefore, it cannot be said that the final settlement was arrived at by the aforesaid letter. 10. The next question to be considered is as to whether after giving a clean discharge certificate by accepting the amount signing the voucher, the complainant-respondent can raise the complaint? 11. As already noticed, the payment was made to the respondent on 8.6.1994 and the respondent gave a clean discharge to the appellant without any qualification, signifying receipt of the amount in full and final settlement of the claim. Thereafter, after a lapse of two months the respondent addressed a letter dated 6.8.1994 to the appellant which is extracted: "Re:Marine Loss NO.101500/43/90-91/86-90 Ex.M.V. Eagle Nov/Fresia. Dear Sir, Thank you for your letter dated the 9th June, 1994 enclosing a Cheque for Rs.70,38,038/- in discharge of your liability under the policies, which, however, did not include interest." 12. In the letter, thus read there is no complaint that the discharge voucher or receipt had been obtained from the complainant respondent herein fraudulently or by exercise of undue influence or by misrepresentation or the like or coercive bargaining. In the case of United India Insurance Vs. Ajmer Singh Cotton & General Mills, (1999) 6 SCC 400 , it was pointed out by this Court that mere execution of discharge voucher would not always deprive the consumer from preferring claim with respect to the deficiency in service or consequential benefits arising out of the amount paid in default of the service rendered. It was further pointed out that despite execution of the discharge voucher, the consumer may be in a position to satisfy the Tribunal or the Commission under the Act that such discharge voucher or receipt had been obtained from him under circumstances which can be termed as fraudulent or exercise of undue influence or by misrepresentation or the like, and if such a case is proved, the authority before whom the complaint is made would be justified in granting appropriate relief. 13. This Court in Polymat India P. Ltd. vs. National Insurance Co. Ltd., 2004(10) Scale 99 also considered the facts of a similar case as in the case in hand. In that case the reason for delay had been explained. The fire took place on 13th January, 1993 in which the insured goods were reportedly gutted by fire. The insurance company appointed the Surveyor and Surveyor sent his report dated 5th November, 1993 which was received by the appellant on 9th November, 1993. As there were some discrepancies in the survey report, the insurance company vides letter dated 14th December, 1993 sought for clarification from the Surveyor, which was replied to on 22.4.1994 by the Surveyor. The insurance company after that took the decision and informed the claimant by a letter dated 1.7.1994 for approval of the claim under both the policies. It is, in these circumstances, this Court held that there was no delay in payment and the levy of interest @ 18% by the Commission was set aside by this Court. 14. In the present case, the claim of the complainant was finally settled by a letter dated 8.4.1994 and the payment was made on 8.6.1994, which was accepted by the respondent without any qualifications. It cannot, therefore, be said that the payment was made belatedly. The important date to be decided in such circumstances is the date on which the quantum of compensation and to whom it should be paid is finally decided and not from the dates on which the correspondences ensued between the parties. 15. In the facts and circumstances, afore stated, we are of the view, that the claim was finally settled by a letter dated 8.4.1994 and the payment was made on 8.6.1994, and therefore, there was no delay in making the payment which would warrant the award of interest on delayed payment.
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1[ds]12. In the letter, thus read there is no complaint that the discharge voucher or receipt had been obtained from the complainant respondent herein fraudulently or by exercise of undue influence or by misrepresentation or the like or coercive bargaining. In the case of United India Insurance Vs. Ajmer Singh Cotton & General Mills, (1999) 6 SCC 400 , it was pointed out by this Court that mere execution of discharge voucher would not always deprive the consumer from preferring claim with respect to the deficiency in service or consequential benefits arising out of the amount paid in default of the service rendered. It was further pointed out that despite execution of the discharge voucher, the consumer may be in a position to satisfy the Tribunal or the Commission under the Act that such discharge voucher or receipt had been obtained from him under circumstances which can be termed as fraudulent or exercise of undue influence or by misrepresentation or the like, and if such a case is proved, the authority before whom the complaint is made would be justified in granting appropriate relief14. In the present case, the claim of the complainant was finally settled by a letter dated 8.4.1994 and the payment was made on 8.6.1994, which was accepted by the respondent without any qualifications. It cannot, therefore, be said that the payment was made belatedly. The important date to be decided in such circumstances is the date on which the quantum of compensation and to whom it should be paid is finally decided and not from the dates on which the correspondences ensued between the parties15. In the facts and circumstances, afore stated, we are of the view, that the claim was finally settled by a letter dated 8.4.1994 and the payment was made on 8.6.1994, and therefore, there was no delay in making the payment which would warrant the award of interest on delayed payment.
| 1 | 1,525 | 348 |
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the loss or damage suffered by the goods to the extent of actual cost of repairs, replacement and conditions effected and incurred. The complainant was also claiming that they had incurred out of pocket expenses and, therefore, the appellant was asking them to provide and furnish the necessary bills in support of total expenses incurred by them, which they failed to do and therefore, the matter was again referred to M/s Webster & Co. for making the investigation into the possible cost involved from M/s Nipha and their local suppliers, respondent herein. 6. Ultimately, M/s Webster by its letter dated 8.4.1994 settled the claim on the basis of consignment as done by the Surveyors. 7. In the facts and circumstances, as recited above, it cannot be said that prior to the letter dated 8.4.1994 the claim had been finally settled and the payment was withheld by the appellant. After the settlement of the amount US $279158.40 equivalent to Rs.70,38,038/- was paid to the respondent on 8.6.1994. The respondent received the aforesaid amount and gave a clean discharge to the appellant without any qualification, signifying receipt of the amount in full and final settlement of the claim. 8. Mr.Mahendra Anand, learned senior counsel, appearing on behalf of the respondent, referred to a letter dated 17.3.1991 and submitted that by the aforesaid letter right, title and interest was vested with M/s Nipha Exports Private Ltd. by Sudan Gezire Rehabilitation Project. In the letter aforesaid, it is stated that they have no objection to settle the claim in favour of M/s Nipha Exports Private Ltd., and advised to address the correspondence direct to them in future. It is his contention that there is no explanation whatsoever by the appellant for withholding the payment from 17.3.1991 to 8.4.1994, the date on which the matter was settled. In view of the circumstances, as recited above, we are unable to accept this contention. From the letter dated 17.3.1991, it is clear that it was not the settlement of the claim but it was a no objection certificate that the claim may be settled in favour of the respondent and advise that all future correspondence be addressed to them directly. 9. Therefore, it cannot be said that the final settlement was arrived at by the aforesaid letter. 10. The next question to be considered is as to whether after giving a clean discharge certificate by accepting the amount signing the voucher, the complainant-respondent can raise the complaint? 11. As already noticed, the payment was made to the respondent on 8.6.1994 and the respondent gave a clean discharge to the appellant without any qualification, signifying receipt of the amount in full and final settlement of the claim. Thereafter, after a lapse of two months the respondent addressed a letter dated 6.8.1994 to the appellant which is extracted: "Re:Marine Loss NO.101500/43/90-91/86-90 Ex.M.V. Eagle Nov/Fresia. Dear Sir, Thank you for your letter dated the 9th June, 1994 enclosing a Cheque for Rs.70,38,038/- in discharge of your liability under the policies, which, however, did not include interest." 12. In the letter, thus read there is no complaint that the discharge voucher or receipt had been obtained from the complainant respondent herein fraudulently or by exercise of undue influence or by misrepresentation or the like or coercive bargaining. In the case of United India Insurance Vs. Ajmer Singh Cotton & General Mills, (1999) 6 SCC 400 , it was pointed out by this Court that mere execution of discharge voucher would not always deprive the consumer from preferring claim with respect to the deficiency in service or consequential benefits arising out of the amount paid in default of the service rendered. It was further pointed out that despite execution of the discharge voucher, the consumer may be in a position to satisfy the Tribunal or the Commission under the Act that such discharge voucher or receipt had been obtained from him under circumstances which can be termed as fraudulent or exercise of undue influence or by misrepresentation or the like, and if such a case is proved, the authority before whom the complaint is made would be justified in granting appropriate relief. 13. This Court in Polymat India P. Ltd. vs. National Insurance Co. Ltd., 2004(10) Scale 99 also considered the facts of a similar case as in the case in hand. In that case the reason for delay had been explained. The fire took place on 13th January, 1993 in which the insured goods were reportedly gutted by fire. The insurance company appointed the Surveyor and Surveyor sent his report dated 5th November, 1993 which was received by the appellant on 9th November, 1993. As there were some discrepancies in the survey report, the insurance company vides letter dated 14th December, 1993 sought for clarification from the Surveyor, which was replied to on 22.4.1994 by the Surveyor. The insurance company after that took the decision and informed the claimant by a letter dated 1.7.1994 for approval of the claim under both the policies. It is, in these circumstances, this Court held that there was no delay in payment and the levy of interest @ 18% by the Commission was set aside by this Court. 14. In the present case, the claim of the complainant was finally settled by a letter dated 8.4.1994 and the payment was made on 8.6.1994, which was accepted by the respondent without any qualifications. It cannot, therefore, be said that the payment was made belatedly. The important date to be decided in such circumstances is the date on which the quantum of compensation and to whom it should be paid is finally decided and not from the dates on which the correspondences ensued between the parties. 15. In the facts and circumstances, afore stated, we are of the view, that the claim was finally settled by a letter dated 8.4.1994 and the payment was made on 8.6.1994, and therefore, there was no delay in making the payment which would warrant the award of interest on delayed payment.
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### Explanation:
12. In the letter, thus read there is no complaint that the discharge voucher or receipt had been obtained from the complainant respondent herein fraudulently or by exercise of undue influence or by misrepresentation or the like or coercive bargaining. In the case of United India Insurance Vs. Ajmer Singh Cotton & General Mills, (1999) 6 SCC 400 , it was pointed out by this Court that mere execution of discharge voucher would not always deprive the consumer from preferring claim with respect to the deficiency in service or consequential benefits arising out of the amount paid in default of the service rendered. It was further pointed out that despite execution of the discharge voucher, the consumer may be in a position to satisfy the Tribunal or the Commission under the Act that such discharge voucher or receipt had been obtained from him under circumstances which can be termed as fraudulent or exercise of undue influence or by misrepresentation or the like, and if such a case is proved, the authority before whom the complaint is made would be justified in granting appropriate relief14. In the present case, the claim of the complainant was finally settled by a letter dated 8.4.1994 and the payment was made on 8.6.1994, which was accepted by the respondent without any qualifications. It cannot, therefore, be said that the payment was made belatedly. The important date to be decided in such circumstances is the date on which the quantum of compensation and to whom it should be paid is finally decided and not from the dates on which the correspondences ensued between the parties15. In the facts and circumstances, afore stated, we are of the view, that the claim was finally settled by a letter dated 8.4.1994 and the payment was made on 8.6.1994, and therefore, there was no delay in making the payment which would warrant the award of interest on delayed payment.
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Maharashtra Chess Association Vs. Union of India & Ors
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superior court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies. 21. The mere existence of alternate forums where the aggrieved party may secure relief does not create a legal bar on a High Court to exercise its writ jurisdiction. It is a factor to be taken into consideration by the High Court amongst several factors. Thus, the mere fact that the High Court at Madras is capable of granting adequate relief to the Appellant does not create a legal bar on the Bombay High Court exercising its writ jurisdiction in the present matter. 22. This brings us to the question of whether Clause 21 itself creates a legal bar on the Bombay High Court exercising its writ jurisdiction. As discussed above, the writ jurisdiction of the High Court is fundamentally discretionary. Even the existence of an alternate adequate remedy is merely an additional factor to be taken into consideration by the High Court in deciding whether or not to exercise its writ jurisdiction. This is in marked contradistinction to the jurisdiction of a civil court which is governed by statute (Section 9. Courts to try all civil suits unless barred – The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred). In exercising its discretion to entertain a particular case under Article 226, a High Court may take into consideration various factors including the nature of the injustice that is alleged by the petitioner, whether or not an alternate remedy exists, or whether the facts raise a question of constitutional interpretation. These factors are not exhaustive and we do not propose to enumerate what factors should or should not be taken into consideration. It is sufficient for the present purposes to say that the High Court must take a holistic view of the facts as submitted in the writ petition and make a determination on the facts and circumstances of each unique case. 23. At this juncture it is worth discussing the decision of this Court in Aligarh Muslim University v Vinay Engineering. (1994) 4 SCC 710 In that case, the contract between the parties contained a clause conferring jurisdiction on the courts at Aligarh. When the High Court of Calcutta exercised its writ jurisdiction over the matter, this Court held: 2. We are surprised, not a little, that the High Court of Calcutta should have exercised jurisdiction in a case where it had absolutely no jurisdiction. The contracts in question were executed at Aligarh, the construction work was to be carried out at Aligarh, even the contracts provided that in the event of dispute the Aligarh Court alone will have jurisdiction. The arbitrator was from Aligarh and was to function there. Merely because the respondent was a Calcutta-based firm, the High Court of Calcutta seems to have exercised jurisdiction where it had none by adopting a queer line of reasoning. We are constrained to say that this is a case of abuse of jurisdiction and we feel that the respondent deliberately moved the Calcutta High Court ignoring the fact that no part of the cause of action had arisen within the jurisdiction of that Court. It clearly shows that the litigation filed in the Calcutta High Court was thoroughly unsustainable. 24. The court examined the facts holistically, noting that the contract was executed and to be performed in Aligarh, and the arbitrator was to function at Aligarh. It did consider that the contract conferred jurisdiction on the courts at Aligarh, but this was one factor amongst several considered by the court in determining that the High Court of Calcutta did not have jurisdiction. 25. In the present case, the Bombay High Court has relied solely on Clause 21 of the Constitution and Bye Laws to hold that its own writ jurisdiction is ousted. The Bombay High Court has failed to examine the case holistically and make a considered determination as to whether or not it should, in its discretion, exercise its powers under Article 226. The scrutiny to be applied to every writ petition under Article 226 by the High Court is a crucial safeguard of the rule of law under the Constitution in the relevant territorial jurisdiction. It is not open to a High Court to abdicate this responsibility merely due to the existence of a privately negotiated document ousting its jurisdiction. 26. It is certainly open to the High Court to take into consideration the fact that the Appellant and the second Respondent consented to resolve all their legal disputes before the courts at Chennai. However, this can be a factor within the broader factual matrix of the case. The High Court may decline to exercise jurisdiction under Article 226 invoking the principle of forum non conveniens in an appropriate case. The High Court must look at the case of the Appellant holistically and make a determination as to whether it would be proper to exercise its writ jurisdiction. We do not express an opinion as to what factors should be considered by the High Court in the present case, nor the corresponding gravity that should be accorded to such factors. Such principles are well known to the High Court and it is not for this Court to interfere in the discretion of the High Court in determining when to engage its writ jurisdiction unless exercised arbitrarily or erroneously. The sole and absolute reliance by the Bombay High Court on Clause 21 of the Constitution and Bye Laws to determine that its jurisdiction under Article 226 is ousted is however one such instance.
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1[ds]8. The Constitution and Bye Laws of the second Respondent are a private agreement between the Appellant and the second Respondent. The decision of the Bombay High Court relied solely on Clause 21 to hold that its own writ jurisdiction, and the jurisdiction of all other courts, is ousted.9. It is a well settled principle of contract law that parties cannot by contract exclude the jurisdiction of all courts. Such a contract would constitute an agreement in restraint of legal proceedings and contravene Section 28 of the Indian Contract Act 1872 (Section 28. Agreements in restraint of legal proceedings, void — Every agreement,- (a) by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights; or (b) which extinguishes the rights of any party thereto, or discharges any party thereto, from any liability, under or in respect of any contract on the expiry of a specified period so as to restrict any party from enforcing his rights, is void to the extent) However, where parties to a contract confer jurisdiction on one amongst multiple courts having proper jurisdiction, to the exclusion of all other courts, the parties cannot be said to have ousted the jurisdiction of all courts. Such a contract is valid and will bind the parties to a civil action.10. Parties cannot by agreement confer jurisdiction on a court which lacks the jurisdiction to adjudicate. But where several courts would have jurisdiction to try the subject matter of the dispute, they can stipulate that a suit be brought exclusively before one of the several courts, to the exclusion of the others. Clause 21 does not oust the jurisdiction of all courts. Rather, the Appellant and the second Respondent have agreed to submit suits or legal actions to the courts at Chennai. So long as the courts at Chennai have proper jurisdiction over a dispute involving the Appellant and the second Respondent, Clause 21 is not in violation of the principle set out in A B C Laminart. However, the decision in A B C Laminart was made in the context of an original suit and the jurisdiction of an ordinary civil court. The present case is materially different. The Appellant approached the Bombay High Court under Article 226. The second Respondent seeks to rely on Clause 21 to oust the writ jurisdiction of the High Court of Bombay.13. While the powers the High Court may exercise under its writ jurisdiction are not subject to strict legal principles, two clear principles emerge with respect to when a High Courts writ jurisdiction may be engaged. First, the decision of the High Court to entertain or not entertain a particular action under its writ jurisdiction is fundamentally discretionary. Secondly, limitations placed on the courts decision to exercise or refuse to exercise its writ jurisdiction are selfimposed. It is a well settled principle that the writ jurisdiction of a High Court cannot be completely excluded by statute. If a High Court is tasked with being the final recourse to upholding the rule of law within its territorial jurisdiction, it must necessarily have the power to examine any case before it and make a determination of whether or not its writ jurisdiction is engaged. Judicial review under Article 226 is an intrinsic feature of the basic structure of the Constitution.16. The observation extracted above raises an important consideration with respect to the present case. If, by the self-imposed rule, the writ jurisdiction of High Courts is circumscribed by the existence of a suitable alternate remedy, whether constitutional, statutory, or contractual, then a High Court should not exercise its writ jurisdiction where such an alternate remedy exists.It follows that if the Respondents argument is accepted, the High Court of Madras would hear the present matter. Therefore, the alternate remedy (i.e. a writ petition before the High Court of Madras) is equal in every way to the present remedy sought by the Appellant. The High Court of Madras is imbued with the same powers in the exercise of its writ jurisdiction. The submission on the above premises is that the Appellant can avail of the same relief at Chennai as it may in Mumbai. Hence, the agreement between the parties must prevail and the writ jurisdiction of the Bombay High Court under Article 226 stands ousted.18. This argument of the second Respondent is misconceived. The existence of an alternate remedy, whether adequate or not, does not alter the fundamentally discretionary nature of the High Courts writ jurisdiction and therefore does not create an absolute legal bar on the exercise of the writ jurisdiction by a High Court. The decision whether or not to entertain an action under its writ jurisdiction remains a decision to be taken by the High Court on an examination of the facts and circumstances of a particular case.21. The mere existence of alternate forums where the aggrieved party may secure relief does not create a legal bar on a High Court to exercise its writ jurisdiction. It is a factor to be taken into consideration by the High Court amongst several factors. Thus, the mere fact that the High Court at Madras is capable of granting adequate relief to the Appellant does not create a legal bar on the Bombay High Court exercising its writ jurisdiction in the present matter.As discussed above, the writ jurisdiction of the High Court is fundamentally discretionary. Even the existence of an alternate adequate remedy is merely an additional factor to be taken into consideration by the High Court in deciding whether or not to exercise its writ jurisdiction. This is in marked contradistinction to the jurisdiction of a civil court which is governed by statute (Section 9. Courts to try all civil suits unless barred – The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred). In exercising its discretion to entertain a particular case under Article 226, a High Court may take into consideration various factors including the nature of the injustice that is alleged by the petitioner, whether or not an alternate remedy exists, or whether the facts raise a question of constitutional interpretation. These factors are not exhaustive and we do not propose to enumerate what factors should or should not be taken into consideration. It is sufficient for the present purposes to say that the High Court must take a holistic view of the facts as submitted in the writ petition and make a determination on the facts and circumstances of each unique case.24. The court examined the facts holistically, noting that the contract was executed and to be performed in Aligarh, and the arbitrator was to function at Aligarh. It did consider that the contract conferred jurisdiction on the courts at Aligarh, but this was one factor amongst several considered by the court in determining that the High Court of Calcutta did not have jurisdiction25. In the present case, the Bombay High Court has relied solely on Clause 21 of the Constitution and Bye Laws to hold that its own writ jurisdiction is ousted. The Bombay High Court has failed to examine the case holistically and make a considered determination as to whether or not it should, in its discretion, exercise its powers under Article 226. The scrutiny to be applied to every writ petition under Article 226 by the High Court is a crucial safeguard of the rule of law under the Constitution in the relevant territorial jurisdiction. It is not open to a High Court to abdicate this responsibility merely due to the existence of a privately negotiated document ousting its jurisdiction26. It is certainly open to the High Court to take into consideration the fact that the Appellant and the second Respondent consented to resolve all their legal disputes before the courts at Chennai. However, this can be a factor within the broader factual matrix of the case. The High Court may decline to exercise jurisdiction under Article 226 invoking the principle of forum non conveniens in an appropriate case. The High Court must look at the case of the Appellant holistically and make a determination as to whether it would be proper to exercise its writ jurisdiction. We do not express an opinion as to what factors should be considered by the High Court in the present case, nor the corresponding gravity that should be accorded to such factors. Such principles are well known to the High Court and it is not for this Court to interfere in the discretion of the High Court in determining when to engage its writ jurisdiction unless exercised arbitrarily or erroneously. The sole and absolute reliance by the Bombay High Court on Clause 21 of the Constitution and Bye Laws to determine that its jurisdiction under Article 226 is ousted is however one such instance.
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### 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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superior court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies. 21. The mere existence of alternate forums where the aggrieved party may secure relief does not create a legal bar on a High Court to exercise its writ jurisdiction. It is a factor to be taken into consideration by the High Court amongst several factors. Thus, the mere fact that the High Court at Madras is capable of granting adequate relief to the Appellant does not create a legal bar on the Bombay High Court exercising its writ jurisdiction in the present matter. 22. This brings us to the question of whether Clause 21 itself creates a legal bar on the Bombay High Court exercising its writ jurisdiction. As discussed above, the writ jurisdiction of the High Court is fundamentally discretionary. Even the existence of an alternate adequate remedy is merely an additional factor to be taken into consideration by the High Court in deciding whether or not to exercise its writ jurisdiction. This is in marked contradistinction to the jurisdiction of a civil court which is governed by statute (Section 9. Courts to try all civil suits unless barred – The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred). In exercising its discretion to entertain a particular case under Article 226, a High Court may take into consideration various factors including the nature of the injustice that is alleged by the petitioner, whether or not an alternate remedy exists, or whether the facts raise a question of constitutional interpretation. These factors are not exhaustive and we do not propose to enumerate what factors should or should not be taken into consideration. It is sufficient for the present purposes to say that the High Court must take a holistic view of the facts as submitted in the writ petition and make a determination on the facts and circumstances of each unique case. 23. At this juncture it is worth discussing the decision of this Court in Aligarh Muslim University v Vinay Engineering. (1994) 4 SCC 710 In that case, the contract between the parties contained a clause conferring jurisdiction on the courts at Aligarh. When the High Court of Calcutta exercised its writ jurisdiction over the matter, this Court held: 2. We are surprised, not a little, that the High Court of Calcutta should have exercised jurisdiction in a case where it had absolutely no jurisdiction. The contracts in question were executed at Aligarh, the construction work was to be carried out at Aligarh, even the contracts provided that in the event of dispute the Aligarh Court alone will have jurisdiction. The arbitrator was from Aligarh and was to function there. Merely because the respondent was a Calcutta-based firm, the High Court of Calcutta seems to have exercised jurisdiction where it had none by adopting a queer line of reasoning. We are constrained to say that this is a case of abuse of jurisdiction and we feel that the respondent deliberately moved the Calcutta High Court ignoring the fact that no part of the cause of action had arisen within the jurisdiction of that Court. It clearly shows that the litigation filed in the Calcutta High Court was thoroughly unsustainable. 24. The court examined the facts holistically, noting that the contract was executed and to be performed in Aligarh, and the arbitrator was to function at Aligarh. It did consider that the contract conferred jurisdiction on the courts at Aligarh, but this was one factor amongst several considered by the court in determining that the High Court of Calcutta did not have jurisdiction. 25. In the present case, the Bombay High Court has relied solely on Clause 21 of the Constitution and Bye Laws to hold that its own writ jurisdiction is ousted. The Bombay High Court has failed to examine the case holistically and make a considered determination as to whether or not it should, in its discretion, exercise its powers under Article 226. The scrutiny to be applied to every writ petition under Article 226 by the High Court is a crucial safeguard of the rule of law under the Constitution in the relevant territorial jurisdiction. It is not open to a High Court to abdicate this responsibility merely due to the existence of a privately negotiated document ousting its jurisdiction. 26. It is certainly open to the High Court to take into consideration the fact that the Appellant and the second Respondent consented to resolve all their legal disputes before the courts at Chennai. However, this can be a factor within the broader factual matrix of the case. The High Court may decline to exercise jurisdiction under Article 226 invoking the principle of forum non conveniens in an appropriate case. The High Court must look at the case of the Appellant holistically and make a determination as to whether it would be proper to exercise its writ jurisdiction. We do not express an opinion as to what factors should be considered by the High Court in the present case, nor the corresponding gravity that should be accorded to such factors. Such principles are well known to the High Court and it is not for this Court to interfere in the discretion of the High Court in determining when to engage its writ jurisdiction unless exercised arbitrarily or erroneously. The sole and absolute reliance by the Bombay High Court on Clause 21 of the Constitution and Bye Laws to determine that its jurisdiction under Article 226 is ousted is however one such instance.
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1
### Explanation:
a High Court cannot be completely excluded by statute. If a High Court is tasked with being the final recourse to upholding the rule of law within its territorial jurisdiction, it must necessarily have the power to examine any case before it and make a determination of whether or not its writ jurisdiction is engaged. Judicial review under Article 226 is an intrinsic feature of the basic structure of the Constitution.16. The observation extracted above raises an important consideration with respect to the present case. If, by the self-imposed rule, the writ jurisdiction of High Courts is circumscribed by the existence of a suitable alternate remedy, whether constitutional, statutory, or contractual, then a High Court should not exercise its writ jurisdiction where such an alternate remedy exists.It follows that if the Respondents argument is accepted, the High Court of Madras would hear the present matter. Therefore, the alternate remedy (i.e. a writ petition before the High Court of Madras) is equal in every way to the present remedy sought by the Appellant. The High Court of Madras is imbued with the same powers in the exercise of its writ jurisdiction. The submission on the above premises is that the Appellant can avail of the same relief at Chennai as it may in Mumbai. Hence, the agreement between the parties must prevail and the writ jurisdiction of the Bombay High Court under Article 226 stands ousted.18. This argument of the second Respondent is misconceived. The existence of an alternate remedy, whether adequate or not, does not alter the fundamentally discretionary nature of the High Courts writ jurisdiction and therefore does not create an absolute legal bar on the exercise of the writ jurisdiction by a High Court. The decision whether or not to entertain an action under its writ jurisdiction remains a decision to be taken by the High Court on an examination of the facts and circumstances of a particular case.21. The mere existence of alternate forums where the aggrieved party may secure relief does not create a legal bar on a High Court to exercise its writ jurisdiction. It is a factor to be taken into consideration by the High Court amongst several factors. Thus, the mere fact that the High Court at Madras is capable of granting adequate relief to the Appellant does not create a legal bar on the Bombay High Court exercising its writ jurisdiction in the present matter.As discussed above, the writ jurisdiction of the High Court is fundamentally discretionary. Even the existence of an alternate adequate remedy is merely an additional factor to be taken into consideration by the High Court in deciding whether or not to exercise its writ jurisdiction. This is in marked contradistinction to the jurisdiction of a civil court which is governed by statute (Section 9. Courts to try all civil suits unless barred – The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred). In exercising its discretion to entertain a particular case under Article 226, a High Court may take into consideration various factors including the nature of the injustice that is alleged by the petitioner, whether or not an alternate remedy exists, or whether the facts raise a question of constitutional interpretation. These factors are not exhaustive and we do not propose to enumerate what factors should or should not be taken into consideration. It is sufficient for the present purposes to say that the High Court must take a holistic view of the facts as submitted in the writ petition and make a determination on the facts and circumstances of each unique case.24. The court examined the facts holistically, noting that the contract was executed and to be performed in Aligarh, and the arbitrator was to function at Aligarh. It did consider that the contract conferred jurisdiction on the courts at Aligarh, but this was one factor amongst several considered by the court in determining that the High Court of Calcutta did not have jurisdiction25. In the present case, the Bombay High Court has relied solely on Clause 21 of the Constitution and Bye Laws to hold that its own writ jurisdiction is ousted. The Bombay High Court has failed to examine the case holistically and make a considered determination as to whether or not it should, in its discretion, exercise its powers under Article 226. The scrutiny to be applied to every writ petition under Article 226 by the High Court is a crucial safeguard of the rule of law under the Constitution in the relevant territorial jurisdiction. It is not open to a High Court to abdicate this responsibility merely due to the existence of a privately negotiated document ousting its jurisdiction26. It is certainly open to the High Court to take into consideration the fact that the Appellant and the second Respondent consented to resolve all their legal disputes before the courts at Chennai. However, this can be a factor within the broader factual matrix of the case. The High Court may decline to exercise jurisdiction under Article 226 invoking the principle of forum non conveniens in an appropriate case. The High Court must look at the case of the Appellant holistically and make a determination as to whether it would be proper to exercise its writ jurisdiction. We do not express an opinion as to what factors should be considered by the High Court in the present case, nor the corresponding gravity that should be accorded to such factors. Such principles are well known to the High Court and it is not for this Court to interfere in the discretion of the High Court in determining when to engage its writ jurisdiction unless exercised arbitrarily or erroneously. The sole and absolute reliance by the Bombay High Court on Clause 21 of the Constitution and Bye Laws to determine that its jurisdiction under Article 226 is ousted is however one such instance.
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M/S. Voltas Ltd. Verses J.M. Demello & Another Vs.
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demand No. 9 and the Reference to the Meher Tribunal based on that demand contained anything which required its deletion, or the demand was for a new scheme of dearness allowance altogether and not merely for a revision of the existing scheme. It is true that neither demand No. 9 nor the Reference, nor the companys written statement before the Tribunal expressly mentioned the ceiling of Rs. 350/- per month. But the companys case before the Labour Court clearly was that there did exist in the prevailing scheme such a ceiling, that it was not mentioned in its reply before the Tribunal because demand No. 9 raised no controversy about it, nor did it call upon the Tribunal to delete it and that the controversy between the parties in that Reference related only to the question as to the basic bracket, percentages of variation and the increase in the minimum. 18. Upon such a case being before the Labour Court, that court had to and was competent to decide the question whether there was a ceiling in the existing scheme, and if so, whether it was deleted by the Tribunal, in other words, whether the demand was for doing away with the existing scheme and substituting it by a fresh scheme which had no ceiling. For that purpose, the Labour Court had necessarily to examine demand No. 9, the Reference, the pleadings of the parties, and lastly, the Meher Award, and incidental to such an in quiry it had to examine the question whether there was a ceiling in the scheme existing at the time of that demand and reference. (see in this connection Ramakrishna Ramnath v. Presiding Officer, Labour Court, Nagpur, (1970) 2 Lab LJ 305 (SC) ). In doing so, the Labour Court had to examine the various stages the dearness allowance scheme had from time to time gone through. 19. Admittedly, the Bakhale award did contain the maximum. That scheme was revised by the circular dated November 16, 1953 by which the dearness allowance was linked with the cost of living and the maximum was raised from Rs. 165 to Rs. 300. That award was terminated and a fresh demand in respect of dearness allowance was made on August 18, 1956. The demand was that the scheme of dearness allowance "at present in force should be revised on the following lines .........." The demand resulted in the settlement dated August 30, 1957. Neither the demand nor the settlement contained any reference to the maximum of Rs. 300/- although it did exist in the existing scheme. The case of respondent 1 was that the said settlement did away with such a maximum and that from 1957 onwards there was no ceiling at all. This case was seriously controverted by the company which produced before the Labour Court the circular, dated March 12, 1959, by which it said that the maximum was raised from Rs. 300/- to Rs. 350/- with effect from April 1, 1959. The case of respondent 1 with regard to this contention of the company was (1) that no such circular was issued, at least to the knowledge of the union, and (2) that even if it was issued, it was confined to the officers of the company and did not apply to workmen. The Labour Court held that interpretation by respondent 1 that it applied to officers alone was not correct. The circular was issued to "all offices" of the company. It applied to all the employees of the company as is evident from its para 2 which stated as follows:"Dearness allowance will continue to be paid on usual basis at the rates applicable at each place subject to the maximum stated above." It also stated that it superseded all other previous circulars. If this circular was issued, as the Labour Court held it was there can be no doubt that (1) there was a ceiling in the scheme prevalent at that time, (2) that it was raised to Rs. 350/- and (3) that it applied to all the employees and not merely to the officers. The Labour Court also accepted the companys case that the circular was notified on the notice board of the company and that that amounted to a notice of a change under section 9A of the Industrial Disputes Act. In any event, the change did not adversely affect the workmen. Nor was the question as to its validity before the Labour Court which used the circular as evidence of a ceiling existing in the scheme right from the time of the Bakhale award. 20. If from all this evidence before it the Labour Court came to the conclusion that a ceiling existed in the scheme of dearness allowance prevailing in the company at all the various stages and that deletion of such a ceiling was not the subject matter of either demand No. 9 it or of the reference before the Meher Tribunal, and that its award was confined to the revision only of the existing scheme in the three matters earlier referred to, it is not possible to say, that the decision of the Labour Court suffered from an error apparent on the face of its decision in respect of which a certiorari can justifiably be issued under Art. 226. The confines of jurisdiction under Art. 226 have been settled by a series of decisions of this Court, from among which we need mention only the case of Syed Yakoob v. K. S. Radhakrishnan, (1964) 5 SCR 64 = (AIR 1964 SC 477 ). There was no question of any estoppel also against the company against its raising the question of the ceiling in view of the finding by the Labour Court that the question of the ceiling was not the subject-matter of the reference before the Meher Tribunal. Such a conclusion of the Labour Court could not be interfered with by the High Court on any one of the well-known grounds on which only such interference is permissible.
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1[ds]15. There can, therefore, be no doubt whatsoever that there was an existing scheme of dearness allowance, that workmen felt that it was not satisfactory and wanted its revision in certain particulars viz., in the percentages of variation, the basic bracket and the amount of the minimum. In paras 145 to 147 of its statement of claim before the Meher Tribunal, the union set out "the existing scheme for dearness allowance", the demand for a revision, viz., in the basic bracket in the percentages of variation and the minimum, and claimed that "the existing dearness allowance scheme failed to meet its object of neutralising the rise in the cost of living and also claimed, by citing dearness allowance paid by other companies, that the dearness allowance paid by the company was the lowest. In para 125 of its written statement the company, on the other hand, pleaded that the existing scheme was fair, having regard to the scales of pay, allowances and other terms and conditions and said that it was agreeable to have a revised scheme set out therein if the workmen did not press for revising the wage scales. In the revised scheme suggested by it, it adopted the variation percentages demanded by the workmen, but insisted that the minimum should remain the same, viz., Rs. 75/-. No doubt, neither the statement of claim by the union, nor the written statement of the company referred to the maximum and clearly for that reason the Tribunal also in its award did not refer to it and concerned itself with the contentions of the parties, (1) as to the basic bracket, (2) the percentages of variation (3) increase in the minimum16. The principal controversy between the parties, as is clear from the opening paragraphs of the Judgment of the Labour Court, was whether the scheme of dearness allowance, as revised by the Tribunal, contained the ceiling. As already stated, the case of respondent 1 was that he was entitled to the dearness allowance as set out in his application, that under the award there was no ceiling and that by paying Rs. 350/- per month, the company withheld from him the benefit accruing to him under the award. The company, on the other hand, alleged that though the award revised the scheme of dearness allowance as prevailing in the company, it did not affect the existing ceiling of Rs. 350/-, and therefore, there was no question of respondent 1 being deprived of any benefit due to him under the award. Thus, the controversy between the parties before the Labour Court was whether there was a ceiling in the existing scheme, and if so, whether the Meher award did away with that ceiling17. The award, of course, could not do away with such a ceiling, if it was there, unless demand No. 9 and the Reference to the Meher Tribunal based on that demand contained anything which required its deletion, or the demand was for a new scheme of dearness allowance altogether and not merely for a revision of the existing scheme. It is true that neither demand No. 9 nor the Reference, nor the companys written statement before the Tribunal expressly mentioned the ceiling of Rs. 350/- per month. But the companys case before the Labour Court clearly was that there did exist in the prevailing scheme such a ceiling, that it was not mentioned in its reply before the Tribunal because demand No. 9 raised no controversy about it, nor did it call upon the Tribunal to delete it and that the controversy between the parties in that Reference related only to the question as to the basic bracket, percentages of variation and the increase in the minimum18. Upon such a case being before the Labour Court, that court had to and was competent to decide the question whether there was a ceiling in the existing scheme, and if so, whether it was deleted by the Tribunal, in other words, whether the demand was for doing away with the existing scheme and substituting it by a fresh scheme which had no ceiling. For that purpose, the Labour Court had necessarily to examine demand No. 9, the Reference, the pleadings of the parties, and lastly, the Meher Award, and incidental to such an in quiry it had to examine the question whether there was a ceiling in the scheme existing at the time of that demand and reference. (see in this connection Ramakrishna Ramnath v. Presiding Officer, Labour Court, Nagpur, (1970) 2 Lab LJ 305 (SC) ). In doing so, the Labour Court had to examine the various stages the dearness allowance scheme had from time to time gone through19. Admittedly, the Bakhale award did contain the maximum. That scheme was revised by the circular dated November 16, 1953 by which the dearness allowance was linked with the cost of living and the maximum was raised from Rs. 165 to Rs. 300. That award was terminated and a fresh demand in respect of dearness allowance was made on August 18, 1956. The demand was that the scheme of dearness allowance "at present in force should be revised on the following lines .........." The demand resulted in the settlement dated August 30, 1957. Neither the demand nor the settlement contained any reference to the maximum of Rs. 300/- although it did exist in the existing scheme. The case of respondent 1 was that the said settlement did away with such a maximum and that from 1957 onwards there was no ceiling at all. This case was seriously controverted by the company which produced before the Labour Court the circular, dated March 12, 1959, by which it said that the maximum was raised from Rs. 300/- to Rs. 350/- with effect from April 1, 1959. The case of respondent 1 with regard to this contention of the company was (1) that no such circular was issued, at least to the knowledge of the union, and (2) that even if it was issued, it was confined to the officers of the company and did not apply to workmen. The Labour Court held that interpretation by respondent 1 that it applied to officers alone was not correct. The circular was issued to "all offices" of the company. It applied to all the employees of the company as is evident from its para 2 which stated as follows:"Dearness allowance will continue to be paid on usual basis at the rates applicable at each place subject to the maximum stated above."It also stated that it superseded all other previous circulars. If this circular was issued, as the Labour Court held it was there can be no doubt that (1) there was a ceiling in the scheme prevalent at that time, (2) that it was raised to Rs. 350/- and (3) that it applied to all the employees and not merely to the officers. The Labour Court also accepted the companys case that the circular was notified on the notice board of the company and that that amounted to a notice of a change under section 9A of the Industrial Disputes Act. In any event, the change did not adversely affect the workmen. Nor was the question as to its validity before the Labour Court which used the circular as evidence of a ceiling existing in the scheme right from the time of the Bakhale award20. If from all this evidence before it the Labour Court came to the conclusion that a ceiling existed in the scheme of dearness allowance prevailing in the company at all the various stages and that deletion of such a ceiling was not the subject matter of either demand No. 9 it or of the reference before the Meher Tribunal, and that its award was confined to the revision only of the existing scheme in the three matters earlier referred to, it is not possible to say, that the decision of the Labour Court suffered from an error apparent on the face of its decision in respect of which a certiorari can justifiably be issued under Art. 226. The confines of jurisdiction under Art. 226 have been settled by a series of decisions of this Court, from among which we need mention only the case of Syed Yakoob v. K. S. Radhakrishnan, (1964) 5 SCR 64 = (AIR 1964 SC 477 ). There was no question of any estoppel also against the company against its raising the question of the ceiling in view of the finding by the Labour Court that the question of the ceiling was not the subject-matter of the reference before the Meher Tribunal. Such a conclusion of the Labour Court could not be interfered with by the High Court on any one of the well-known grounds on which only such interference is permissible.
| 1 | 5,596 | 1,641 |
### 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:
demand No. 9 and the Reference to the Meher Tribunal based on that demand contained anything which required its deletion, or the demand was for a new scheme of dearness allowance altogether and not merely for a revision of the existing scheme. It is true that neither demand No. 9 nor the Reference, nor the companys written statement before the Tribunal expressly mentioned the ceiling of Rs. 350/- per month. But the companys case before the Labour Court clearly was that there did exist in the prevailing scheme such a ceiling, that it was not mentioned in its reply before the Tribunal because demand No. 9 raised no controversy about it, nor did it call upon the Tribunal to delete it and that the controversy between the parties in that Reference related only to the question as to the basic bracket, percentages of variation and the increase in the minimum. 18. Upon such a case being before the Labour Court, that court had to and was competent to decide the question whether there was a ceiling in the existing scheme, and if so, whether it was deleted by the Tribunal, in other words, whether the demand was for doing away with the existing scheme and substituting it by a fresh scheme which had no ceiling. For that purpose, the Labour Court had necessarily to examine demand No. 9, the Reference, the pleadings of the parties, and lastly, the Meher Award, and incidental to such an in quiry it had to examine the question whether there was a ceiling in the scheme existing at the time of that demand and reference. (see in this connection Ramakrishna Ramnath v. Presiding Officer, Labour Court, Nagpur, (1970) 2 Lab LJ 305 (SC) ). In doing so, the Labour Court had to examine the various stages the dearness allowance scheme had from time to time gone through. 19. Admittedly, the Bakhale award did contain the maximum. That scheme was revised by the circular dated November 16, 1953 by which the dearness allowance was linked with the cost of living and the maximum was raised from Rs. 165 to Rs. 300. That award was terminated and a fresh demand in respect of dearness allowance was made on August 18, 1956. The demand was that the scheme of dearness allowance "at present in force should be revised on the following lines .........." The demand resulted in the settlement dated August 30, 1957. Neither the demand nor the settlement contained any reference to the maximum of Rs. 300/- although it did exist in the existing scheme. The case of respondent 1 was that the said settlement did away with such a maximum and that from 1957 onwards there was no ceiling at all. This case was seriously controverted by the company which produced before the Labour Court the circular, dated March 12, 1959, by which it said that the maximum was raised from Rs. 300/- to Rs. 350/- with effect from April 1, 1959. The case of respondent 1 with regard to this contention of the company was (1) that no such circular was issued, at least to the knowledge of the union, and (2) that even if it was issued, it was confined to the officers of the company and did not apply to workmen. The Labour Court held that interpretation by respondent 1 that it applied to officers alone was not correct. The circular was issued to "all offices" of the company. It applied to all the employees of the company as is evident from its para 2 which stated as follows:"Dearness allowance will continue to be paid on usual basis at the rates applicable at each place subject to the maximum stated above." It also stated that it superseded all other previous circulars. If this circular was issued, as the Labour Court held it was there can be no doubt that (1) there was a ceiling in the scheme prevalent at that time, (2) that it was raised to Rs. 350/- and (3) that it applied to all the employees and not merely to the officers. The Labour Court also accepted the companys case that the circular was notified on the notice board of the company and that that amounted to a notice of a change under section 9A of the Industrial Disputes Act. In any event, the change did not adversely affect the workmen. Nor was the question as to its validity before the Labour Court which used the circular as evidence of a ceiling existing in the scheme right from the time of the Bakhale award. 20. If from all this evidence before it the Labour Court came to the conclusion that a ceiling existed in the scheme of dearness allowance prevailing in the company at all the various stages and that deletion of such a ceiling was not the subject matter of either demand No. 9 it or of the reference before the Meher Tribunal, and that its award was confined to the revision only of the existing scheme in the three matters earlier referred to, it is not possible to say, that the decision of the Labour Court suffered from an error apparent on the face of its decision in respect of which a certiorari can justifiably be issued under Art. 226. The confines of jurisdiction under Art. 226 have been settled by a series of decisions of this Court, from among which we need mention only the case of Syed Yakoob v. K. S. Radhakrishnan, (1964) 5 SCR 64 = (AIR 1964 SC 477 ). There was no question of any estoppel also against the company against its raising the question of the ceiling in view of the finding by the Labour Court that the question of the ceiling was not the subject-matter of the reference before the Meher Tribunal. Such a conclusion of the Labour Court could not be interfered with by the High Court on any one of the well-known grounds on which only such interference is permissible.
### Response:
1
### Explanation:
unless demand No. 9 and the Reference to the Meher Tribunal based on that demand contained anything which required its deletion, or the demand was for a new scheme of dearness allowance altogether and not merely for a revision of the existing scheme. It is true that neither demand No. 9 nor the Reference, nor the companys written statement before the Tribunal expressly mentioned the ceiling of Rs. 350/- per month. But the companys case before the Labour Court clearly was that there did exist in the prevailing scheme such a ceiling, that it was not mentioned in its reply before the Tribunal because demand No. 9 raised no controversy about it, nor did it call upon the Tribunal to delete it and that the controversy between the parties in that Reference related only to the question as to the basic bracket, percentages of variation and the increase in the minimum18. Upon such a case being before the Labour Court, that court had to and was competent to decide the question whether there was a ceiling in the existing scheme, and if so, whether it was deleted by the Tribunal, in other words, whether the demand was for doing away with the existing scheme and substituting it by a fresh scheme which had no ceiling. For that purpose, the Labour Court had necessarily to examine demand No. 9, the Reference, the pleadings of the parties, and lastly, the Meher Award, and incidental to such an in quiry it had to examine the question whether there was a ceiling in the scheme existing at the time of that demand and reference. (see in this connection Ramakrishna Ramnath v. Presiding Officer, Labour Court, Nagpur, (1970) 2 Lab LJ 305 (SC) ). In doing so, the Labour Court had to examine the various stages the dearness allowance scheme had from time to time gone through19. Admittedly, the Bakhale award did contain the maximum. That scheme was revised by the circular dated November 16, 1953 by which the dearness allowance was linked with the cost of living and the maximum was raised from Rs. 165 to Rs. 300. That award was terminated and a fresh demand in respect of dearness allowance was made on August 18, 1956. The demand was that the scheme of dearness allowance "at present in force should be revised on the following lines .........." The demand resulted in the settlement dated August 30, 1957. Neither the demand nor the settlement contained any reference to the maximum of Rs. 300/- although it did exist in the existing scheme. The case of respondent 1 was that the said settlement did away with such a maximum and that from 1957 onwards there was no ceiling at all. This case was seriously controverted by the company which produced before the Labour Court the circular, dated March 12, 1959, by which it said that the maximum was raised from Rs. 300/- to Rs. 350/- with effect from April 1, 1959. The case of respondent 1 with regard to this contention of the company was (1) that no such circular was issued, at least to the knowledge of the union, and (2) that even if it was issued, it was confined to the officers of the company and did not apply to workmen. The Labour Court held that interpretation by respondent 1 that it applied to officers alone was not correct. The circular was issued to "all offices" of the company. It applied to all the employees of the company as is evident from its para 2 which stated as follows:"Dearness allowance will continue to be paid on usual basis at the rates applicable at each place subject to the maximum stated above."It also stated that it superseded all other previous circulars. If this circular was issued, as the Labour Court held it was there can be no doubt that (1) there was a ceiling in the scheme prevalent at that time, (2) that it was raised to Rs. 350/- and (3) that it applied to all the employees and not merely to the officers. The Labour Court also accepted the companys case that the circular was notified on the notice board of the company and that that amounted to a notice of a change under section 9A of the Industrial Disputes Act. In any event, the change did not adversely affect the workmen. Nor was the question as to its validity before the Labour Court which used the circular as evidence of a ceiling existing in the scheme right from the time of the Bakhale award20. If from all this evidence before it the Labour Court came to the conclusion that a ceiling existed in the scheme of dearness allowance prevailing in the company at all the various stages and that deletion of such a ceiling was not the subject matter of either demand No. 9 it or of the reference before the Meher Tribunal, and that its award was confined to the revision only of the existing scheme in the three matters earlier referred to, it is not possible to say, that the decision of the Labour Court suffered from an error apparent on the face of its decision in respect of which a certiorari can justifiably be issued under Art. 226. The confines of jurisdiction under Art. 226 have been settled by a series of decisions of this Court, from among which we need mention only the case of Syed Yakoob v. K. S. Radhakrishnan, (1964) 5 SCR 64 = (AIR 1964 SC 477 ). There was no question of any estoppel also against the company against its raising the question of the ceiling in view of the finding by the Labour Court that the question of the ceiling was not the subject-matter of the reference before the Meher Tribunal. Such a conclusion of the Labour Court could not be interfered with by the High Court on any one of the well-known grounds on which only such interference is permissible.
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Braithwaite &. (India) Ltd Vs. The Employees' State Insurance Corporation
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of any period of authorised leave, lock-out or legal strike. It did not lay down that other payments made to an employee under other circumstances were also to be deemed to be wages. A legal fiction is adopted in law for a limited and definite purpose only and there is no justification for extending it beyond the purpose for which the legislature adopted it. In the Bengal Immunities Co. Ltd. v. State of Bihar 1955-2 SCR 603 at p. 646 = (AIR 1955 SC 661 at p. 680), this Court, dealing with the Explanation to Article 286 (1) of the Constitution, as it existed before 11th September, 1956, held :-"Whichever view is taken of the Explanation, it should be limited to the purpose the Constitution-makers had in view when they incorporated it in clause 1. It is quite obvious that it created a legal fiction Legal fictions are created only for some definite purpose."Applying the same principle, we have to hold that the Explanation to Section 11 is not to be utilised for interpreting the general definition of "wages" given in Section 2 (22) of the Act and is to be taken into account only when the word "wages" requires interpretation for purposes of sections 40 and 41 of the Act. It cannot, therefore, be held that remuneration payable under a scheme is to be covered by the word "wages", if the terms of contract of employment are taken to have been fulfilled. What is really required by the definition is that the terms of the contract of employment must actually be fulfilled. It is, therefore, not correct to hold that because payments made to an employee for no service rendered during the period of lock-out, or during the period of legal strike, would be wages, Inam paid under that scheme must also be deemed to be wages.6. The second reason which led the High Court to hold against the appellant was that, according to that Court, the Scheme contained an offer by the employer for payments to the employees for service rendered by them, and that offer was accepted by the employees impliedly by having worked on the terms of the Notice and having received payments on that basis. The mere fact that a reward for good work offered by the employer is accepted by the employee after he has successfully satisfied the requirement laid down by the employer for earning reward cannot mean that this payment becomes a part of contract of employment. In fact in this case, there was no questions of offer by the appellant and acceptance by the employees as a condition of their service. The employees were already working in accordance with the terms of their contract of employment when the employer decided to make this extra payment if the employees did successfully what they were already expected to do under that contract. It cannot, therefore, he held that this payment of Inam ever became even an implied term of the contract of employment of the employees of the appellant. This Court in Bala Subrahmanya Rajaram v. B. G. Patil, 1958 SCR 1504 at p. 1508 = (AIR 1958 SC 518 at p. 520) had to interpret the meaning of word "wages" as defined in the Payment of Wages Act. where also wages were defined as remuneration which would be payable if the terms of the contract of employment, express or implied, were fulfilled. The Court expressed its opinion in the following words -"Now the question is whether the kind of bonus contemplated by this definition must be a bonus that is payable as a clause of the contract of employment. We think it is, and for this reason."Thereafter, the Court proceeded to examine whether bonus was, in fact, payable as a clause of the contract of employment. The word "wages" in the Act having been defined in similar terms, a remuneration paid to an employee can only be covered by the definition of "wages", if it is payable under a clause of the contract of employment. As we have indicated earlier, there was no express clause in the contract of employment of the employees of the appellant laying down the payment of Inam, and the Scheme when brought into force, expressly excluded it from the contract of employment. The forms on which the Inam was payable were also not consistent with the Scheme having become a part of the contract of employment.7. In this connection, counsel appearing for the respondent brought to our notice one other feature of the Scheme which was not relied upon by the High Court to hold that this Inam was wages. That term is contained in the last paragraph of the Scheme where after stating that the Company reserved the right to withdraw- the Scheme altogether without assigning any reason or revise targets and any condition of the Scheme at its sole discretion, went on to add that the Company also reserved the right to discontinue the scheme at the end of any period, if the scheme is found to be in any respect unworkable or to be a source of labour discontent or for any other reason. It was urged that the fact that the Scheme could only be discontinued at the end of a prescribed period and not in the midst of a period showed that the Inam was payable as one of the conditions of contract of employment of the employees. We do not think that there is any force in this submission. It was against a one-sided promise on behalf of the appellant not to deny this payment of Inam during a period for which the Inam Scheme had already been notified by the appellant, but such an assurance on behalf of the appellant does not indicate that the employees could claim that a right to receive the Inam had accrued to them as an implied condition of contract of employment. The decision given by the High Court has, therefore, to be set aside.
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1[ds]In this case, therefore, we have to confine our decision to the interpretation of the first part of the definition ofappears to us that, on a correct interpretation of the terms of the Scheme, the High Court committed an error in holding that the payment of this Inam had become a term of the contract of employment of theThe features of the Scheme, which indicate that the Payment of Inam did not become a term of the contract of employment, are clear from the Scheme itself. The first is that this payment of Inam was not amongst the original terms of contract of employment of the employees. In those terms, there was no offer of any reward or prize to be paid for any work done by the employees. The employees were expected to work for certain periods at agreed rates of wages which, in some cases, were hourly rated and, in some, monthly rated. This Inam Scheme was introduced at a later stage in Dec. 1955. The only offer under the Scheme was to make incentive payments, if certain specified conditions were fulfilled by the employees. Even though this offer of incentive payment was made, the appellant, in clear words, reserved the right to withdraw the Scheme altogether without assigning any reason or to revise its conditions at its sole discretion. Clearly, if the right to the Inam had become an implied condition of the contract of employment, the employer could not withdraw that right at its discretion without assigning any reason, nor could the employer vary its conditions without agreement from the employees concerned. The payment of the Inam was dependent upon the employees exceeding the target of output appropriately applicable to him. But though primarily the right to receive the Inam depended on the efficient working of the employees, there was another clause which laid down that, if the target were not achieved due to lack of orders, lack of materials, breakdown of machinery, lack of labour, strike", lockouts,or any other reason whatsoever, no Inam was to be awarded. This condition is clearly inconsistent with the payment of Inam having become an implied term of the contract of employment, because Inam became nonpayable even if the production target was not achieved for reasons for which the employees were not at all to blame.If the employer did not receive sufficient orders for sale of its output, or there was lack ofor there wasbreakdown of machineryand as a result during the period for which the Inam was notified, it became impossible for the employee to achieve the minimum target fixed, there was no liability on the appellant to pay the Inam. Such exemption from payment of the Inam on ground for which the employees could not be blamed and possibly for which the appellant itself might be responsible clearly shows that the payment of this Inam was not enforceable as one of the terms of the contract of employment, whether implied or express.The appellant had also laid down that if any deterioration of workmanship was noticed on the part of the employees in order to achieve the targets prescribed for earning the Inam, the Scheme could be abandoned forthwith. It was also made clear to the workmen in the Scheme that this payment of reward was in no way connected with or part of wages.It was on these conditions that the employees were receiving the Inam. Thus, though there was a payment to the employees and since that payment depended on their achieving certain targets, it has to be held to be remuneration, this payment of Inam cannot be held to have become a term of the contract of employment.5. The High Court, in arriving at the contrary decision, referred to the Explanation to section 41 of the Act and held on its basis that, even if the terms of contract of employment are deemed to have been fulfilled the remuneration paid would be wages. The Explanation lays down that for the purposes of sections 40 and 41, wages shall be deemed to include payment to an employee in respect of any period of authorised leave,or legal strike. It appears to us that the High Court committed an error in applying this legal fiction which was meant for sections 40 and 41 of the Act only, and extending it to the definition of wages, when dealing with the question of payment in the nature of Inam under the Scheme started by the appellant.The fiction in the Explanation was a very limited one and it only laid down that wages were to be deemed to include payment to an employee in respect of any period of authorised leave,or legal strike. It did not lay down that other payments made to an employee under other circumstances were also to be deemed to be wages. A legal fiction is adopted in law for a limited and definite purpose only and there is no justification for extending it beyond the purpose for which the legislature adopted it. In the Bengal Immunities Co. Ltd. v. State of BiharSCR 603 at p. 646 = (AIR 1955 SC 661 at p. 680), this Court, dealing with the Explanation to Article 286 (1) of the Constitution, as it existed before 11th September, 1956, heldview is taken of the Explanation, it should be limited to the purpose thehad in view when they incorporated it in clause 1. It is quite obvious that it created a legal fiction Legal fictions are created only for some definitethe same principle, we have to hold that the Explanation to Section 11 is not to be utilised for interpreting the general definition of "wages" given in Section 2 (22) of the Act and is to be taken into account only when the word "wages" requires interpretation for purposes of sections 40 and 41 of the Act. It cannot, therefore, be held that remuneration payable under a scheme is to be covered by the word "wages", if the terms of contract of employment are taken to have been fulfilled. What is really required by the definition is that the terms of the contract of employment must actually be fulfilled. It is, therefore, not correct to hold that because payments made to an employee for no service rendered during the period ofor during the period of legal strike, would be wages, Inam paid under that scheme must also be deemed to be wages.6. The second reason which led the High Court to hold against the appellant was that, according to that Court, the Scheme contained an offer by the employer for payments to the employees for service rendered by them, and that offer was accepted by the employees impliedly by having worked on the terms of the Notice and having received payments on that basis. The mere fact that a reward for good work offered by the employer is accepted by the employee after he has successfully satisfied the requirement laid down by the employer for earning reward cannot mean that this payment becomes a part of contract of employment. In fact in this case, there was no questions of offer by the appellant and acceptance by the employees as a condition of their service. The employees were already working in accordance with the terms of their contract of employment when the employer decided to make this extra payment if the employees did successfully what they were already expected to do under that contract. It cannot, therefore, he held that this payment of Inam ever became even an implied term of the contract of employment of the employees of the appellant. This Court in Bala Subrahmanya Rajaram v. B. G. Patil, 1958 SCR 1504 at p. 1508 = (AIR 1958 SC 518 at p. 520) had to interpret the meaning of word "wages" as defined in the Payment of Wages Act. where also wages were defined as remuneration which would be payable if the terms of the contract of employment, express or implied, were fulfilled. The Court expressed its opinion in the followingthe question is whether the kind of bonus contemplated by this definition must be a bonus that is payable as a clause of the contract of employment. We think it is, and for thisthe Court proceeded to examine whether bonus was, in fact, payable as a clause of the contract of employment. The word "wages" in the Act having been defined in similar terms, a remuneration paid to an employee can only be covered by the definition of "wages", if it is payable under a clause of the contract of employment. As we have indicated earlier, there was no express clause in the contract of employment of the employees of the appellant laying down the payment of Inam, and the Scheme when brought into force, expressly excluded it from the contract of employment. The forms on which the Inam was payable were also not consistent with the Scheme having become a part of the contract ofdo not think that there is any force in this submission. It was against apromise on behalf of the appellant not to deny this payment of Inam during a period for which the Inam Scheme had already been notified by the appellant, but such an assurance on behalf of the appellant does not indicate that the employees could claim that a right to receive the Inam had accrued to them as an implied condition of contract of employment. The decision given by the High Court has, therefore, to be set aside.
| 1 | 3,008 | 1,731 |
### 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:
of any period of authorised leave, lock-out or legal strike. It did not lay down that other payments made to an employee under other circumstances were also to be deemed to be wages. A legal fiction is adopted in law for a limited and definite purpose only and there is no justification for extending it beyond the purpose for which the legislature adopted it. In the Bengal Immunities Co. Ltd. v. State of Bihar 1955-2 SCR 603 at p. 646 = (AIR 1955 SC 661 at p. 680), this Court, dealing with the Explanation to Article 286 (1) of the Constitution, as it existed before 11th September, 1956, held :-"Whichever view is taken of the Explanation, it should be limited to the purpose the Constitution-makers had in view when they incorporated it in clause 1. It is quite obvious that it created a legal fiction Legal fictions are created only for some definite purpose."Applying the same principle, we have to hold that the Explanation to Section 11 is not to be utilised for interpreting the general definition of "wages" given in Section 2 (22) of the Act and is to be taken into account only when the word "wages" requires interpretation for purposes of sections 40 and 41 of the Act. It cannot, therefore, be held that remuneration payable under a scheme is to be covered by the word "wages", if the terms of contract of employment are taken to have been fulfilled. What is really required by the definition is that the terms of the contract of employment must actually be fulfilled. It is, therefore, not correct to hold that because payments made to an employee for no service rendered during the period of lock-out, or during the period of legal strike, would be wages, Inam paid under that scheme must also be deemed to be wages.6. The second reason which led the High Court to hold against the appellant was that, according to that Court, the Scheme contained an offer by the employer for payments to the employees for service rendered by them, and that offer was accepted by the employees impliedly by having worked on the terms of the Notice and having received payments on that basis. The mere fact that a reward for good work offered by the employer is accepted by the employee after he has successfully satisfied the requirement laid down by the employer for earning reward cannot mean that this payment becomes a part of contract of employment. In fact in this case, there was no questions of offer by the appellant and acceptance by the employees as a condition of their service. The employees were already working in accordance with the terms of their contract of employment when the employer decided to make this extra payment if the employees did successfully what they were already expected to do under that contract. It cannot, therefore, he held that this payment of Inam ever became even an implied term of the contract of employment of the employees of the appellant. This Court in Bala Subrahmanya Rajaram v. B. G. Patil, 1958 SCR 1504 at p. 1508 = (AIR 1958 SC 518 at p. 520) had to interpret the meaning of word "wages" as defined in the Payment of Wages Act. where also wages were defined as remuneration which would be payable if the terms of the contract of employment, express or implied, were fulfilled. The Court expressed its opinion in the following words -"Now the question is whether the kind of bonus contemplated by this definition must be a bonus that is payable as a clause of the contract of employment. We think it is, and for this reason."Thereafter, the Court proceeded to examine whether bonus was, in fact, payable as a clause of the contract of employment. The word "wages" in the Act having been defined in similar terms, a remuneration paid to an employee can only be covered by the definition of "wages", if it is payable under a clause of the contract of employment. As we have indicated earlier, there was no express clause in the contract of employment of the employees of the appellant laying down the payment of Inam, and the Scheme when brought into force, expressly excluded it from the contract of employment. The forms on which the Inam was payable were also not consistent with the Scheme having become a part of the contract of employment.7. In this connection, counsel appearing for the respondent brought to our notice one other feature of the Scheme which was not relied upon by the High Court to hold that this Inam was wages. That term is contained in the last paragraph of the Scheme where after stating that the Company reserved the right to withdraw- the Scheme altogether without assigning any reason or revise targets and any condition of the Scheme at its sole discretion, went on to add that the Company also reserved the right to discontinue the scheme at the end of any period, if the scheme is found to be in any respect unworkable or to be a source of labour discontent or for any other reason. It was urged that the fact that the Scheme could only be discontinued at the end of a prescribed period and not in the midst of a period showed that the Inam was payable as one of the conditions of contract of employment of the employees. We do not think that there is any force in this submission. It was against a one-sided promise on behalf of the appellant not to deny this payment of Inam during a period for which the Inam Scheme had already been notified by the appellant, but such an assurance on behalf of the appellant does not indicate that the employees could claim that a right to receive the Inam had accrued to them as an implied condition of contract of employment. The decision given by the High Court has, therefore, to be set aside.
### Response:
1
### Explanation:
has to be held to be remuneration, this payment of Inam cannot be held to have become a term of the contract of employment.5. The High Court, in arriving at the contrary decision, referred to the Explanation to section 41 of the Act and held on its basis that, even if the terms of contract of employment are deemed to have been fulfilled the remuneration paid would be wages. The Explanation lays down that for the purposes of sections 40 and 41, wages shall be deemed to include payment to an employee in respect of any period of authorised leave,or legal strike. It appears to us that the High Court committed an error in applying this legal fiction which was meant for sections 40 and 41 of the Act only, and extending it to the definition of wages, when dealing with the question of payment in the nature of Inam under the Scheme started by the appellant.The fiction in the Explanation was a very limited one and it only laid down that wages were to be deemed to include payment to an employee in respect of any period of authorised leave,or legal strike. It did not lay down that other payments made to an employee under other circumstances were also to be deemed to be wages. A legal fiction is adopted in law for a limited and definite purpose only and there is no justification for extending it beyond the purpose for which the legislature adopted it. In the Bengal Immunities Co. Ltd. v. State of BiharSCR 603 at p. 646 = (AIR 1955 SC 661 at p. 680), this Court, dealing with the Explanation to Article 286 (1) of the Constitution, as it existed before 11th September, 1956, heldview is taken of the Explanation, it should be limited to the purpose thehad in view when they incorporated it in clause 1. It is quite obvious that it created a legal fiction Legal fictions are created only for some definitethe same principle, we have to hold that the Explanation to Section 11 is not to be utilised for interpreting the general definition of "wages" given in Section 2 (22) of the Act and is to be taken into account only when the word "wages" requires interpretation for purposes of sections 40 and 41 of the Act. It cannot, therefore, be held that remuneration payable under a scheme is to be covered by the word "wages", if the terms of contract of employment are taken to have been fulfilled. What is really required by the definition is that the terms of the contract of employment must actually be fulfilled. It is, therefore, not correct to hold that because payments made to an employee for no service rendered during the period ofor during the period of legal strike, would be wages, Inam paid under that scheme must also be deemed to be wages.6. The second reason which led the High Court to hold against the appellant was that, according to that Court, the Scheme contained an offer by the employer for payments to the employees for service rendered by them, and that offer was accepted by the employees impliedly by having worked on the terms of the Notice and having received payments on that basis. The mere fact that a reward for good work offered by the employer is accepted by the employee after he has successfully satisfied the requirement laid down by the employer for earning reward cannot mean that this payment becomes a part of contract of employment. In fact in this case, there was no questions of offer by the appellant and acceptance by the employees as a condition of their service. The employees were already working in accordance with the terms of their contract of employment when the employer decided to make this extra payment if the employees did successfully what they were already expected to do under that contract. It cannot, therefore, he held that this payment of Inam ever became even an implied term of the contract of employment of the employees of the appellant. This Court in Bala Subrahmanya Rajaram v. B. G. Patil, 1958 SCR 1504 at p. 1508 = (AIR 1958 SC 518 at p. 520) had to interpret the meaning of word "wages" as defined in the Payment of Wages Act. where also wages were defined as remuneration which would be payable if the terms of the contract of employment, express or implied, were fulfilled. The Court expressed its opinion in the followingthe question is whether the kind of bonus contemplated by this definition must be a bonus that is payable as a clause of the contract of employment. We think it is, and for thisthe Court proceeded to examine whether bonus was, in fact, payable as a clause of the contract of employment. The word "wages" in the Act having been defined in similar terms, a remuneration paid to an employee can only be covered by the definition of "wages", if it is payable under a clause of the contract of employment. As we have indicated earlier, there was no express clause in the contract of employment of the employees of the appellant laying down the payment of Inam, and the Scheme when brought into force, expressly excluded it from the contract of employment. The forms on which the Inam was payable were also not consistent with the Scheme having become a part of the contract ofdo not think that there is any force in this submission. It was against apromise on behalf of the appellant not to deny this payment of Inam during a period for which the Inam Scheme had already been notified by the appellant, but such an assurance on behalf of the appellant does not indicate that the employees could claim that a right to receive the Inam had accrued to them as an implied condition of contract of employment. The decision given by the High Court has, therefore, to be set aside.
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A. Rangaswamy Iyengar Vs. Pattammal (Alias) Rajalakshmi Ammal & Another
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Shelat, J.1. The 1st respondent is the wife of the appellant and the mother of the 2nd respondent.2. The two respondents obtained a decree for maintenance against the appellant. On the appellants failure to pay the maintenance provided under the decree, the respondents took out execution proceedings which ended in an order for sale of the appellants property at which the 1st respondent, who also acted as the guardian of the 2nd respondent, then a minor, become the auction purchaser. The 1st respondent had been previously granted leave by the Court to bid at the said auction sale. The amount of maintenance due till then to the respondents was set off against the purchase price.3. Two applications were then filed by the appellant for setting aside the sale. The reasons urged in the applications were that the decree for maintenance provided separate maintenance for the two respondents, that it was accordingly not a joint decree, that the 1st respondent, therefore, could not set off the whole of the arrears of maintenance due to her and respondent 2, and consequently, was bound to deposit in the Court the balance of auction price after deducting therefrom arrears due to her. The applications were dismissed by the execution court. The appellant thereupon filed appeals in the High Court against the said orders of dismissal. A learned Single Judge of the High Court upheld the appellants contentions and allowed the appeals. In letters patent appeals filed by the respondents, a Division Bench of the High Court reversed the order passed by the learned Single Judge and allowed the appeals field by the respondents. The appellant thereupon applied for a certificate to file an appeal to this Court under article 133(1) of the Constitution urging that he was entitled to a certificate as the judgment of the letters patent Bench was one of reversal and the matter satisfied the test of pecuniary value, namely, Rs. 10, 000/- which was the relevant value for the purposes of the instant matter.4. The Division Bench which heard the application for certificate dismissed it holding that a Single Judge of the High Court exercising its appellate jurisdiction was not "a court immediately below" the Division Bench of the same High Court which heard the letters patent appeals and that the judgment of the letters patent Bench against which leave to appeal to the Supreme Court was sought for "was in effect so far as this High Court is concerned one of affirmance", because as the only effective judgment of the High Court, it restored the order of the court of the first instance upholding the execution of sale.5. The appellant then obtained special leave from this Court, which, however, was confined to the question whether a Single Judge of a High Court is a court immediately below a Division Bench of the same High Court which hears and disposes of a letters patent appeal provided under the Letters patent of such a High Court.6. The question whether a Single Judge of a High Court trying a matter, either in exercise of the original jurisdiction of the High Court or its appellate jurisdiction, is a court immediately below a Division Bench of that same High Court as provided in Article 133(1) is now covered by two decisions of this Court, and therefore, it is no longer necessary for us to go into any enquiry about such a question. In Ladli Prasad Jaiswal v. Karnal Distillery Co., Ltd., (1964 (1) SCR 270 : AIR 1963 SC 1279 .) a bench of five judges disapproving the decisions relied on by the High Court in this case held that the expression" a court immediately below" and "a court subordinate to the High Court" had different meanings, and were, therefore, not one and the same. This court held that the test for determining whether an aggrieved party has a right to appeal, other conditions being fulfilled, is not whether the judgment is of a court subordinate to the High Court but whether the judgment is of a court immediately below and that a Single Judge of the High Court hearing a proceeding either as a court of original jurisdiction or in exercise of appellate jurisdiction is a court immediately below the Division Bench which hears an appeal against his judgment under the relevant clause of the Letters Patent. (See also Shri Durga Prasad v. The Banaras Bank Ltd. (1964 (1) SCR 475 : AIR 41963 SC 1322 : (1963) 1 SCJ 519.))7. Accordingly, the High Court was not right in refusing the certificate if other conditions of Article 133(1)(a) or (b) were satisfied, on the ground that the judgment of the Division Bench was not one of reversal as the learned Single Judge of the High Court was not a court immediately below the Division Bench of that High Court.8.
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1[ds]7. Accordingly, the High Court was not right in refusing the certificate if other conditions of Article 133(1)(a) or (b) were satisfied, on the ground that the judgment of the Division Bench was not one of reversal as the learned Single Judge of the High Court was not a court immediately below the Division Bench of that Highcourt held that the test for determining whether an aggrieved party has a right to appeal, other conditions being fulfilled, is not whether the judgment is of a court subordinate to the High Court but whether the judgment is of a court immediately below and that a Single Judge of the High Court hearing a proceeding either as a court of original jurisdiction or in exercise of appellate jurisdiction is a court immediately below the Division Bench which hears an appeal against his judgment under the relevant clause of the Letters Patent.
| 1 | 895 | 167 |
### 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:
Shelat, J.1. The 1st respondent is the wife of the appellant and the mother of the 2nd respondent.2. The two respondents obtained a decree for maintenance against the appellant. On the appellants failure to pay the maintenance provided under the decree, the respondents took out execution proceedings which ended in an order for sale of the appellants property at which the 1st respondent, who also acted as the guardian of the 2nd respondent, then a minor, become the auction purchaser. The 1st respondent had been previously granted leave by the Court to bid at the said auction sale. The amount of maintenance due till then to the respondents was set off against the purchase price.3. Two applications were then filed by the appellant for setting aside the sale. The reasons urged in the applications were that the decree for maintenance provided separate maintenance for the two respondents, that it was accordingly not a joint decree, that the 1st respondent, therefore, could not set off the whole of the arrears of maintenance due to her and respondent 2, and consequently, was bound to deposit in the Court the balance of auction price after deducting therefrom arrears due to her. The applications were dismissed by the execution court. The appellant thereupon filed appeals in the High Court against the said orders of dismissal. A learned Single Judge of the High Court upheld the appellants contentions and allowed the appeals. In letters patent appeals filed by the respondents, a Division Bench of the High Court reversed the order passed by the learned Single Judge and allowed the appeals field by the respondents. The appellant thereupon applied for a certificate to file an appeal to this Court under article 133(1) of the Constitution urging that he was entitled to a certificate as the judgment of the letters patent Bench was one of reversal and the matter satisfied the test of pecuniary value, namely, Rs. 10, 000/- which was the relevant value for the purposes of the instant matter.4. The Division Bench which heard the application for certificate dismissed it holding that a Single Judge of the High Court exercising its appellate jurisdiction was not "a court immediately below" the Division Bench of the same High Court which heard the letters patent appeals and that the judgment of the letters patent Bench against which leave to appeal to the Supreme Court was sought for "was in effect so far as this High Court is concerned one of affirmance", because as the only effective judgment of the High Court, it restored the order of the court of the first instance upholding the execution of sale.5. The appellant then obtained special leave from this Court, which, however, was confined to the question whether a Single Judge of a High Court is a court immediately below a Division Bench of the same High Court which hears and disposes of a letters patent appeal provided under the Letters patent of such a High Court.6. The question whether a Single Judge of a High Court trying a matter, either in exercise of the original jurisdiction of the High Court or its appellate jurisdiction, is a court immediately below a Division Bench of that same High Court as provided in Article 133(1) is now covered by two decisions of this Court, and therefore, it is no longer necessary for us to go into any enquiry about such a question. In Ladli Prasad Jaiswal v. Karnal Distillery Co., Ltd., (1964 (1) SCR 270 : AIR 1963 SC 1279 .) a bench of five judges disapproving the decisions relied on by the High Court in this case held that the expression" a court immediately below" and "a court subordinate to the High Court" had different meanings, and were, therefore, not one and the same. This court held that the test for determining whether an aggrieved party has a right to appeal, other conditions being fulfilled, is not whether the judgment is of a court subordinate to the High Court but whether the judgment is of a court immediately below and that a Single Judge of the High Court hearing a proceeding either as a court of original jurisdiction or in exercise of appellate jurisdiction is a court immediately below the Division Bench which hears an appeal against his judgment under the relevant clause of the Letters Patent. (See also Shri Durga Prasad v. The Banaras Bank Ltd. (1964 (1) SCR 475 : AIR 41963 SC 1322 : (1963) 1 SCJ 519.))7. Accordingly, the High Court was not right in refusing the certificate if other conditions of Article 133(1)(a) or (b) were satisfied, on the ground that the judgment of the Division Bench was not one of reversal as the learned Single Judge of the High Court was not a court immediately below the Division Bench of that High Court.8.
### Response:
1
### Explanation:
7. Accordingly, the High Court was not right in refusing the certificate if other conditions of Article 133(1)(a) or (b) were satisfied, on the ground that the judgment of the Division Bench was not one of reversal as the learned Single Judge of the High Court was not a court immediately below the Division Bench of that Highcourt held that the test for determining whether an aggrieved party has a right to appeal, other conditions being fulfilled, is not whether the judgment is of a court subordinate to the High Court but whether the judgment is of a court immediately below and that a Single Judge of the High Court hearing a proceeding either as a court of original jurisdiction or in exercise of appellate jurisdiction is a court immediately below the Division Bench which hears an appeal against his judgment under the relevant clause of the Letters Patent.
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Kashi Nath Vs. Kudsia Begum & Others
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consent of respondent No. 1 her election agent by interfering with the free exercise of electoral rights of electors taking advantage of his official position and telling them that they will have to suffer from his hands in case they will not support the candidature of respondent No. 1 and vote for her. The name, date and place of commission of such corrupt practice are the same as are given in Schedule VIII to the election petition. That in case it is not proved that the corrupt practices mentioned in paragraph 20 (and in its sub-paragraphs) were committed by respondent No. 1 and her election agent or by her agents with her consent they were committed by the persons named in respective Schedules viz. Schedules VIIA and VIII in the interest of the respondent No. 1 and the same has materially affected the result of the election as the respondent No. l who has succeeded by a margin of 76 votes she secured more than 1000 votes due to the corrupt practices committed in her interest". Schedule VIII of the petition which is a part of para 20 (c) may also be reproduced to the extent necessary: "SCHEDULE VIII Name of the person committed corrupt practice.DatePlaceRemarks Nawab Ezaz Rasool husband and Election Agent of respondent No 1.2-2-1969Village MalaiyaHe went with Nawab Ezaz Rasool in a Jeep and canvassed support for her in that village along with him. Respondent No.13-2-1969Village RaisonHe accompanied respondent No. 1 in her jeep and canvassed support for her in the village along with her." ""Village Samodha" Nawab Ezaz Rasool4-2-1969KachaunaHe accompanied the Nawab and canvassed support for respondent No. 1 in the said village." 4. An attempt was made long after the period of limitation for riling the election petition had expired to amend column I of the heading of Schedule VIII by the insertion of words "in whose company Madan Gopal Misra" between the words persons and committed in column I of that Schedule.That was rightly disallowed by the learned trial judge as a defective petition could not be allowed to be rectified after the period of limitation for filing it had expired. 5. It has been pointed out by the learned counsel for the appellant that so far as the allegation contained in pare 20 (b) is concerned it has been found by the High Court that the officer mentioned therein does not fall within the category of officers specified in Section 123 (7) of the Act. It has, therefore, to be decided whether the allegations in pare 20 (c) read with Schedule VIII relate to the commission of a corrupt practice by respondent No. ls husband and election agent Aizaz Rasul within the meaning of Section 123 (2) of the Act. A great deal of stress has been laid on the contents of para 20 (c) and it has been emphasised that the allegation of commission of a corrupt practice of undue influence was made against Madan Gopal Misra Sanitary Inspector, although it was stated that the alleged corrupt practice had been committed with the consent of respondent No. 1 and her election agent. Reliance has been placed on S. B. Adityan v S. Kandaswami, 1959 SCR 868 = (AIR 1958 SC 857 ) where it was observed at page 876 that a corrupt practice committed with the consent of a candidate was not in itself a new kind of corrupt practice. The consent by a candidate to the commission of a corrupt practice by someone else, whatever its consequences might be, was not itself a corrupt practice. Therefore to say that a candidate consented to corrupt practice being committed by accepting a gift made to him to induce him to withdraw his candidature was not to say that he himself committed the corrupt practice. The decision in that case is clearly distinguishable on facts. 6. Now S. 123 (2) defines "undue influence" as meaning any direct or indirect interference or attempt to interfere on the part of the candidate or his agent or of any other person with the consent of the candidate or his election agent with the free exercise of any electoral right. According to proviso (a) (i) any such person referred to above who threatens any candidate or any elector, inter alia, with injury of any kind shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector. The meaning of corrupt practice in cl. (b) of S. 82 of the Act has to be determined with reference to S. 123 (2). It has thus to be seen whether any allegations of corrupt practice were made against Aizaz Rasul who was admittedly a candidate within the meaning of S. 79 (b) of the Act. 7. In our judgment the High Court was right in reading the contents of Schedule VIII in the context of the allegations made in paragraphs 20 (b) and 20 (c) of the petition. The election agent of respondent No. 1 Aizaz Rasul is alleged to have availed of the services of Misra the Sanitary Inspector who is stated to be living in his kothi at Sandila to exercise undue influence on the voters with his assistance and he is actually alleged to have exercised the said influence by carrying Misra in his jeep to Malaiya and Kachauna villages where along with him the voters were asked by Misra to vote for respondent No. 1 on pain of their suffering injury at his hands if they did not do so. The fact that corrupt practices were alleged in the aforesaid sub-paragraphs of Para 20 as having been committed by respondent No. 1 and her election agent is proved from what is stated in the first part of pare 21 as well. We are unable to accept that whatever allegations of corrupt practices were made they were confined only to Misra the Sanitary Inspector. The High Court was, therefore, justified in dismissing the petition under S. 86 (1) of the Act.
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0[ds]4. An attempt was made long after the period of limitation for riling the election petition had expired to amend column I of the heading of Schedule VIII by the insertion of words "in whose company Madan Gopal Misra" between the words persons and committed in column I of that Schedule.That was rightly disallowed by the learned trial judge as a defective petition could not be allowed to be rectified after the period of limitation for filing it had expiredReliance has been placed on S. B. Adityan v S. Kandaswami, 1959 SCR 868 = (AIR 1958 SC 857 )where it was observed at page 876 that a corrupt practice committed with the consent of a candidate was not in itself a new kind of corrupt practice. The consent by a candidate to the commission of a corrupt practice by someone else, whatever its consequences might be, was not itself a corrupt practice. Therefore to say that a candidate consented to corrupt practice being committed by accepting a gift made to him to induce him to withdraw his candidature was not to say that he himself committed the corrupt practice. The decision in that case is clearly distinguishable on facts7. In our judgment the High Court was right in reading the contents of Schedule VIII in the context of the allegations made in paragraphs 20 (b) and 20 (c) of the petition. The election agent of respondent No. 1 Aizaz Rasul is alleged to have availed of the services of Misra the Sanitary Inspector who is stated to be living in his kothi at Sandila to exercise undue influence on the voters with his assistance and he is actually alleged to have exercised the said influence by carrying Misra in his jeep to Malaiya and Kachauna villages where along with him the voters were asked by Misra to vote for respondent No. 1 on pain of their suffering injury at his hands if they did not do so. The fact that corrupt practices were alleged in the aforesaids of Para 20 as having been committed by respondent No. 1 and her election agent is proved from what is stated in the first part of pare 21 as well. We are unable to accept that whatever allegations of corrupt practices were made they were confined only to Misra the Sanitary Inspector. The High Court was, therefore, justified in dismissing the petition under S. 86 (1) of the Act.
| 0 | 1,741 | 438 |
### 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:
consent of respondent No. 1 her election agent by interfering with the free exercise of electoral rights of electors taking advantage of his official position and telling them that they will have to suffer from his hands in case they will not support the candidature of respondent No. 1 and vote for her. The name, date and place of commission of such corrupt practice are the same as are given in Schedule VIII to the election petition. That in case it is not proved that the corrupt practices mentioned in paragraph 20 (and in its sub-paragraphs) were committed by respondent No. 1 and her election agent or by her agents with her consent they were committed by the persons named in respective Schedules viz. Schedules VIIA and VIII in the interest of the respondent No. 1 and the same has materially affected the result of the election as the respondent No. l who has succeeded by a margin of 76 votes she secured more than 1000 votes due to the corrupt practices committed in her interest". Schedule VIII of the petition which is a part of para 20 (c) may also be reproduced to the extent necessary: "SCHEDULE VIII Name of the person committed corrupt practice.DatePlaceRemarks Nawab Ezaz Rasool husband and Election Agent of respondent No 1.2-2-1969Village MalaiyaHe went with Nawab Ezaz Rasool in a Jeep and canvassed support for her in that village along with him. Respondent No.13-2-1969Village RaisonHe accompanied respondent No. 1 in her jeep and canvassed support for her in the village along with her." ""Village Samodha" Nawab Ezaz Rasool4-2-1969KachaunaHe accompanied the Nawab and canvassed support for respondent No. 1 in the said village." 4. An attempt was made long after the period of limitation for riling the election petition had expired to amend column I of the heading of Schedule VIII by the insertion of words "in whose company Madan Gopal Misra" between the words persons and committed in column I of that Schedule.That was rightly disallowed by the learned trial judge as a defective petition could not be allowed to be rectified after the period of limitation for filing it had expired. 5. It has been pointed out by the learned counsel for the appellant that so far as the allegation contained in pare 20 (b) is concerned it has been found by the High Court that the officer mentioned therein does not fall within the category of officers specified in Section 123 (7) of the Act. It has, therefore, to be decided whether the allegations in pare 20 (c) read with Schedule VIII relate to the commission of a corrupt practice by respondent No. ls husband and election agent Aizaz Rasul within the meaning of Section 123 (2) of the Act. A great deal of stress has been laid on the contents of para 20 (c) and it has been emphasised that the allegation of commission of a corrupt practice of undue influence was made against Madan Gopal Misra Sanitary Inspector, although it was stated that the alleged corrupt practice had been committed with the consent of respondent No. 1 and her election agent. Reliance has been placed on S. B. Adityan v S. Kandaswami, 1959 SCR 868 = (AIR 1958 SC 857 ) where it was observed at page 876 that a corrupt practice committed with the consent of a candidate was not in itself a new kind of corrupt practice. The consent by a candidate to the commission of a corrupt practice by someone else, whatever its consequences might be, was not itself a corrupt practice. Therefore to say that a candidate consented to corrupt practice being committed by accepting a gift made to him to induce him to withdraw his candidature was not to say that he himself committed the corrupt practice. The decision in that case is clearly distinguishable on facts. 6. Now S. 123 (2) defines "undue influence" as meaning any direct or indirect interference or attempt to interfere on the part of the candidate or his agent or of any other person with the consent of the candidate or his election agent with the free exercise of any electoral right. According to proviso (a) (i) any such person referred to above who threatens any candidate or any elector, inter alia, with injury of any kind shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector. The meaning of corrupt practice in cl. (b) of S. 82 of the Act has to be determined with reference to S. 123 (2). It has thus to be seen whether any allegations of corrupt practice were made against Aizaz Rasul who was admittedly a candidate within the meaning of S. 79 (b) of the Act. 7. In our judgment the High Court was right in reading the contents of Schedule VIII in the context of the allegations made in paragraphs 20 (b) and 20 (c) of the petition. The election agent of respondent No. 1 Aizaz Rasul is alleged to have availed of the services of Misra the Sanitary Inspector who is stated to be living in his kothi at Sandila to exercise undue influence on the voters with his assistance and he is actually alleged to have exercised the said influence by carrying Misra in his jeep to Malaiya and Kachauna villages where along with him the voters were asked by Misra to vote for respondent No. 1 on pain of their suffering injury at his hands if they did not do so. The fact that corrupt practices were alleged in the aforesaid sub-paragraphs of Para 20 as having been committed by respondent No. 1 and her election agent is proved from what is stated in the first part of pare 21 as well. We are unable to accept that whatever allegations of corrupt practices were made they were confined only to Misra the Sanitary Inspector. The High Court was, therefore, justified in dismissing the petition under S. 86 (1) of the Act.
### Response:
0
### Explanation:
4. An attempt was made long after the period of limitation for riling the election petition had expired to amend column I of the heading of Schedule VIII by the insertion of words "in whose company Madan Gopal Misra" between the words persons and committed in column I of that Schedule.That was rightly disallowed by the learned trial judge as a defective petition could not be allowed to be rectified after the period of limitation for filing it had expiredReliance has been placed on S. B. Adityan v S. Kandaswami, 1959 SCR 868 = (AIR 1958 SC 857 )where it was observed at page 876 that a corrupt practice committed with the consent of a candidate was not in itself a new kind of corrupt practice. The consent by a candidate to the commission of a corrupt practice by someone else, whatever its consequences might be, was not itself a corrupt practice. Therefore to say that a candidate consented to corrupt practice being committed by accepting a gift made to him to induce him to withdraw his candidature was not to say that he himself committed the corrupt practice. The decision in that case is clearly distinguishable on facts7. In our judgment the High Court was right in reading the contents of Schedule VIII in the context of the allegations made in paragraphs 20 (b) and 20 (c) of the petition. The election agent of respondent No. 1 Aizaz Rasul is alleged to have availed of the services of Misra the Sanitary Inspector who is stated to be living in his kothi at Sandila to exercise undue influence on the voters with his assistance and he is actually alleged to have exercised the said influence by carrying Misra in his jeep to Malaiya and Kachauna villages where along with him the voters were asked by Misra to vote for respondent No. 1 on pain of their suffering injury at his hands if they did not do so. The fact that corrupt practices were alleged in the aforesaids of Para 20 as having been committed by respondent No. 1 and her election agent is proved from what is stated in the first part of pare 21 as well. We are unable to accept that whatever allegations of corrupt practices were made they were confined only to Misra the Sanitary Inspector. The High Court was, therefore, justified in dismissing the petition under S. 86 (1) of the Act.
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State of Gujarat Vs. Patel Bava Karsan and Others
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FAZAL ALI, J. 1. This appeal by certificate is directed against a judgment of the Gujarat High Court dated 31-1-1970 issuing a writ of mandamus to the Rajkot Municipality directing it to desist from enforcing a notice dated 9-3-1966 served on respondent No. 1 and requiring him in pursuance of the provisions of s. 233(1) of the Gujarat Municipality Act (hereinafter referred to as the Gujarat Act ) to hand over possession of a piece of land to the Municipality on the ground that he was in unauthorised occupation thereof. The only point in controversy before the High Court was as to whether or not s. 233 of the Gujarat Act, under which the proceedings for eviction of the respondent No. 1 were taken, was constitutionally valid. The High Court in view of a previous decision of that Court held that s. 233 being violative of Art. 14 of the Constitution of India was ultra vires. The appellants applied for certificate for leave to appeal under Art. 133(1) (c) which was granted; hence this appeal. 2. Section 233 of the Gujarat Act runs thus:-"233. Power to evict certain persons from municipal premises. (1) If the Chief Officer is satisfied- (a) that the person authorised to occupy any premises belonging to the municipality (hereinafter referred to as "the municipal premises") as a tenant or otherwise has- (i) not paid rent lawfully due from in respect of such premises for a period of more than two months, or (ii) sub-let, without the permission of the municipality, the whole or any part of such premises, or (iii) otherwise acted in contravention of any of the terms, express or implied, under which he is authorised to occupy such premises, or (b) that any person is in unauthorised occupation of any municipal premises,the Chief Officer may, notwithstanding anything contained in any law for the time being in force, by notice served (i) by post or (ii) by affixing a copy of it on the outer door or some other conspicuous part of such premises, or (iii) in such other manner as may be provided in the rules made by the State Government order that the person as well as any other person who may be in occupation of the whole or any part of the premises, shall vacate them within one month of the date of the service o f the notice. (2) Before an order under sub-section (1) is made against any person the Chief Officer shall inform the person by notice in writing of the grounds on which the proposed order is to be made and give him a reasonable opportunity of tendering an explanation and producing evidence, if any, and to show cause why such order should not be made, within a period to be specified in such notice. If such person makes an application to the chief officer for extension of the period specified in the notice the chief officer may grant the same on such terms as to payment and recovery of the amount claimed in the notice as it deems fit. Any written statement put in by such person and documents produced in pursuance of such notice shall be filed with the record of the case and such person shall be entitled to appear before the authority proceeding in this connection by advocate, attorney or pleader. Such notice in writing shall be served in the manner provided for service of notice under sub-section (1). .... .... ...." 3. It appears that in the case of Northern India Caterer s Pvt. Ltd. &Anr. v. State of Punjab &Anr.(1) this Court while construing a statute whose provisions were almost similar to those of s. 233 of the Gujarat Act took the same view as the High Court and struck down the statute. This decision held the field until it was ultimately overruled in the case of Chhaganlal Maganlal(2).In a later decision in Ahmedabad Municipal Corporation &Ors. v. Ramanlal Govindram &Ors.(3) this Court while following the case of Chhaganlal Maganlal upheld a provision of the Bombay Provincial Municipal Corporation (Gujarat Amendment) Act, 1963 which was in pari materia with s. 233 of the Gujarat Act. Mr. M. K. Ramamurthi appearing for the respondents submitted that Ahmedabad Municipal Corporation s case (supra) was not correctly decided because though in Chhaganlal Maganlals case (supra) there was a right to appeal to a Civil Court and the right to take evidence was given by the statute concerned, in the former, the relevant statute contained no such provision. This contention does not appear to be well-founded because once property belonging to the Government or semi-Government bodies is held to fall within a particular class and therefore a reasonable classification, whether a civil remedy is given or not would not be violative of Art. 14 of the Constitution on the broad principle laid down in Chhaganlal Maganlals case. 4. It was also argued that the provisions of the Gujarat Act were violative of Art. 19 of the Constitution of India. This contention was expressly considered and negatived by this Court in Ahmedabad Municipal Corporation &Ors. v. Ramanlal Govindram & Ors. (supra) with which we find ourselves in complete agreement.
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1[ds]This contention does not appear to be well-founded because once property belonging to the Government or semi-Government bodies is held to fall within a particular class and therefore a reasonable classification, whether a civil remedy is given or not would not be violative of Art. 14 of the Constitution on the broad principle laid down in Chhaganlal Maganlals caseThis contention was expressly considered and negatived by this Court in Ahmedabad Municipal Corporation &Ors. v. Ramanlal Govindram & Ors. (supra) with which we find ourselves in complete agreementWe might, however, observe that under section 236 of the Gujarat, Act, the respondents have a right to file an appeal to the Government against the impugned order of eviction. This section also contains a specific provision under which delay can be condoned if sufficient cause is shown to the satisfaction of the appellate authority namely the Government.
| 1 | 987 | 161 |
### 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:
FAZAL ALI, J. 1. This appeal by certificate is directed against a judgment of the Gujarat High Court dated 31-1-1970 issuing a writ of mandamus to the Rajkot Municipality directing it to desist from enforcing a notice dated 9-3-1966 served on respondent No. 1 and requiring him in pursuance of the provisions of s. 233(1) of the Gujarat Municipality Act (hereinafter referred to as the Gujarat Act ) to hand over possession of a piece of land to the Municipality on the ground that he was in unauthorised occupation thereof. The only point in controversy before the High Court was as to whether or not s. 233 of the Gujarat Act, under which the proceedings for eviction of the respondent No. 1 were taken, was constitutionally valid. The High Court in view of a previous decision of that Court held that s. 233 being violative of Art. 14 of the Constitution of India was ultra vires. The appellants applied for certificate for leave to appeal under Art. 133(1) (c) which was granted; hence this appeal. 2. Section 233 of the Gujarat Act runs thus:-"233. Power to evict certain persons from municipal premises. (1) If the Chief Officer is satisfied- (a) that the person authorised to occupy any premises belonging to the municipality (hereinafter referred to as "the municipal premises") as a tenant or otherwise has- (i) not paid rent lawfully due from in respect of such premises for a period of more than two months, or (ii) sub-let, without the permission of the municipality, the whole or any part of such premises, or (iii) otherwise acted in contravention of any of the terms, express or implied, under which he is authorised to occupy such premises, or (b) that any person is in unauthorised occupation of any municipal premises,the Chief Officer may, notwithstanding anything contained in any law for the time being in force, by notice served (i) by post or (ii) by affixing a copy of it on the outer door or some other conspicuous part of such premises, or (iii) in such other manner as may be provided in the rules made by the State Government order that the person as well as any other person who may be in occupation of the whole or any part of the premises, shall vacate them within one month of the date of the service o f the notice. (2) Before an order under sub-section (1) is made against any person the Chief Officer shall inform the person by notice in writing of the grounds on which the proposed order is to be made and give him a reasonable opportunity of tendering an explanation and producing evidence, if any, and to show cause why such order should not be made, within a period to be specified in such notice. If such person makes an application to the chief officer for extension of the period specified in the notice the chief officer may grant the same on such terms as to payment and recovery of the amount claimed in the notice as it deems fit. Any written statement put in by such person and documents produced in pursuance of such notice shall be filed with the record of the case and such person shall be entitled to appear before the authority proceeding in this connection by advocate, attorney or pleader. Such notice in writing shall be served in the manner provided for service of notice under sub-section (1). .... .... ...." 3. It appears that in the case of Northern India Caterer s Pvt. Ltd. &Anr. v. State of Punjab &Anr.(1) this Court while construing a statute whose provisions were almost similar to those of s. 233 of the Gujarat Act took the same view as the High Court and struck down the statute. This decision held the field until it was ultimately overruled in the case of Chhaganlal Maganlal(2).In a later decision in Ahmedabad Municipal Corporation &Ors. v. Ramanlal Govindram &Ors.(3) this Court while following the case of Chhaganlal Maganlal upheld a provision of the Bombay Provincial Municipal Corporation (Gujarat Amendment) Act, 1963 which was in pari materia with s. 233 of the Gujarat Act. Mr. M. K. Ramamurthi appearing for the respondents submitted that Ahmedabad Municipal Corporation s case (supra) was not correctly decided because though in Chhaganlal Maganlals case (supra) there was a right to appeal to a Civil Court and the right to take evidence was given by the statute concerned, in the former, the relevant statute contained no such provision. This contention does not appear to be well-founded because once property belonging to the Government or semi-Government bodies is held to fall within a particular class and therefore a reasonable classification, whether a civil remedy is given or not would not be violative of Art. 14 of the Constitution on the broad principle laid down in Chhaganlal Maganlals case. 4. It was also argued that the provisions of the Gujarat Act were violative of Art. 19 of the Constitution of India. This contention was expressly considered and negatived by this Court in Ahmedabad Municipal Corporation &Ors. v. Ramanlal Govindram & Ors. (supra) with which we find ourselves in complete agreement.
### Response:
1
### Explanation:
This contention does not appear to be well-founded because once property belonging to the Government or semi-Government bodies is held to fall within a particular class and therefore a reasonable classification, whether a civil remedy is given or not would not be violative of Art. 14 of the Constitution on the broad principle laid down in Chhaganlal Maganlals caseThis contention was expressly considered and negatived by this Court in Ahmedabad Municipal Corporation &Ors. v. Ramanlal Govindram & Ors. (supra) with which we find ourselves in complete agreementWe might, however, observe that under section 236 of the Gujarat, Act, the respondents have a right to file an appeal to the Government against the impugned order of eviction. This section also contains a specific provision under which delay can be condoned if sufficient cause is shown to the satisfaction of the appellate authority namely the Government.
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Varghese K. Joseph Vs. The Custodian & Others
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date might have been reasonable in the given situation where large number of investors were filing applications for certification of the tainted shares time and again and hence cut off date might have been justified, it was also expected to take care and guard the interest of the investors who are based and live not merely within the geographical boundaries of the Special Court which had fixed the cut off date but also live far and wide even across the boundaries of the country which is the fact in the instant matter also. Hence, in our considered view, it was obligatory on the part of the Special Court and the Custodian to notice an important fact that when the shares purchased by the appellant were reported to be tainted which was issued through Respondent No.5-M/s. Fair Growth Company by the share broker companies i.e. Respondent No. 4 and 5 and the same was ordered to be attached by the Custodian in view of the Government of India Regulation it was clearly nefarious and dubious activity on the part of the Respondent No.5-M/s. Fair Growth Financial Service Ltd. due to which the unnecessary hassle of certification of the shares issued in the name of M/s. Fair Growth Company became essential. The investors like the appellant herein had absolutely no role in such activity and hence even if the cut off date was fixed by the Special Court for certification of such shares, the same could not have been enforced oblivious of its repercussion on those investors who could not approach the Special Court for certification for reasons beyond their control as it has happened in the case of the appellant herein who could not approach the Special Court for certification of his tainted shares for reasons which have been elaborated hereinbefore. 23. In the instant matter, we have noticed that the appellant/applicant had filed an application before the Special Court seeking a direction for certification of the shares on 27.8.2005 which even if counted from the cut off date, would at the most was delayed by two months as the appellant had not received any notice which could be proved, indicating that the application for certification had to be filed by 27.6.2005 although the same is asserted by the respondent-Custodian, which cannot be accepted in absence of appearance of respondent Nos. 3 and 4. But even if it were so, the Court should have certainly considered the circumstance whether a bonafide purchaser of shares could be denied his due merely on the ground of violation of a cut off date which clearly did not have its existence in the statute and hence had no statutory force. The order sought from the Special Court to fix a cut off date for receiving application for certification was, therefore, based merely on the theory of convenience of the custodian clearly ignoring its ramification on the bonafide investor. It is common knowledge that when public at large invest in securities by purchasing shares of a notified company, it purchases through various modes including the modern tools and technique of internet and many other modern modes and methods. But thereafter, if the shares are held to be tainted which is clearly beyond the control of the appellant/investor and its certification is required, it is surely the custodian in co-ordination with the company floating shares as also the share broker company or the stock exchange, which has the onus and responsibility to take care of the interest of the investors under the supervision of the Special Court in view of the provision of the Special Courts Act of 1992. The `Custodian therefore cannot shirk away from his function and the duty cast upon him by limiting his responsibilities and seeking a cut off date during which only he could perform the duty of certification, oblivious of its consequence and other ramification on the investors which include small investors also who put in their hard earned money in the shares of the company and later comes to know that the shares were tainted on which the investor has absolutely no role or control. 24. Even if we were to appreciate certain limitations on the discharge of duties of certification by the Custodian, the Special Court clearly had the duty to ensure that in absence of a statutory time limit prescribed for certification of shares under the Act of 1956, read with the Special Courts Act of 1992, the Special Court was duty bound to guard the interest of the investors through the Custodian at least in case of those investors who had bonafide purchased the shares of a notified company which for reasons beyond the control of investors, was held to be tainted. 25. Hence, in our considered opinion, the appellant under the facts and existing circumstances of the case where he ended up buying tainted shares for no fault on his part but had to seek its certification from the Custodian under compelling circumstance which was not his creation and also had no control, could not have been denied his due on the ground of delay in filing the application for certification specially when the appellant had sought certification of his shares only after two months of the cut off date for reasons beyond his control which cut off date has no statutory effect or legal force. The appellant on the one hand was saddled with the tainted shares for no fault on his part through respondent Nos. 4, 5 and 6 on which he had no control or any role to play and on the top of it, when he sought a remedy of certification for claiming dividends, he had to suffer an order by which his application was rejected on the ground that he had not moved an application within the cut off date which had no statutory force as the same had been fixed at the instance of the Custodian seeking approval from the Special Court. 26. As a consequence of the aforesaid discussion,
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1[ds], the appellant under the facts and existing circumstances of the case where he ended up buying tainted shares for no fault on his part but had to seek its certification from the Custodian under compelling circumstance which was not his creation and also had no control, could not have been denied his due on the ground of delay in filing the application for certification specially when the appellant had sought certification of his shares only after two months of thefor reasons beyond his control which cut off date has no statutory effect or legal force. Thesaddled with the tainted shares for no fault on his part through respondent Nos. 4, 5 and 6 on which he had no control or any role to play and on the top of it, when he sought a remedy of certification for claiming dividends, he had to suffer an order by which his application was rejected on the ground that he had not moved an application within the cut off date which had no statutory force as the same had been fixed at the instance of the Custodian seeking approval from the Special Court
| 1 | 5,158 | 201 |
### 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:
date might have been reasonable in the given situation where large number of investors were filing applications for certification of the tainted shares time and again and hence cut off date might have been justified, it was also expected to take care and guard the interest of the investors who are based and live not merely within the geographical boundaries of the Special Court which had fixed the cut off date but also live far and wide even across the boundaries of the country which is the fact in the instant matter also. Hence, in our considered view, it was obligatory on the part of the Special Court and the Custodian to notice an important fact that when the shares purchased by the appellant were reported to be tainted which was issued through Respondent No.5-M/s. Fair Growth Company by the share broker companies i.e. Respondent No. 4 and 5 and the same was ordered to be attached by the Custodian in view of the Government of India Regulation it was clearly nefarious and dubious activity on the part of the Respondent No.5-M/s. Fair Growth Financial Service Ltd. due to which the unnecessary hassle of certification of the shares issued in the name of M/s. Fair Growth Company became essential. The investors like the appellant herein had absolutely no role in such activity and hence even if the cut off date was fixed by the Special Court for certification of such shares, the same could not have been enforced oblivious of its repercussion on those investors who could not approach the Special Court for certification for reasons beyond their control as it has happened in the case of the appellant herein who could not approach the Special Court for certification of his tainted shares for reasons which have been elaborated hereinbefore. 23. In the instant matter, we have noticed that the appellant/applicant had filed an application before the Special Court seeking a direction for certification of the shares on 27.8.2005 which even if counted from the cut off date, would at the most was delayed by two months as the appellant had not received any notice which could be proved, indicating that the application for certification had to be filed by 27.6.2005 although the same is asserted by the respondent-Custodian, which cannot be accepted in absence of appearance of respondent Nos. 3 and 4. But even if it were so, the Court should have certainly considered the circumstance whether a bonafide purchaser of shares could be denied his due merely on the ground of violation of a cut off date which clearly did not have its existence in the statute and hence had no statutory force. The order sought from the Special Court to fix a cut off date for receiving application for certification was, therefore, based merely on the theory of convenience of the custodian clearly ignoring its ramification on the bonafide investor. It is common knowledge that when public at large invest in securities by purchasing shares of a notified company, it purchases through various modes including the modern tools and technique of internet and many other modern modes and methods. But thereafter, if the shares are held to be tainted which is clearly beyond the control of the appellant/investor and its certification is required, it is surely the custodian in co-ordination with the company floating shares as also the share broker company or the stock exchange, which has the onus and responsibility to take care of the interest of the investors under the supervision of the Special Court in view of the provision of the Special Courts Act of 1992. The `Custodian therefore cannot shirk away from his function and the duty cast upon him by limiting his responsibilities and seeking a cut off date during which only he could perform the duty of certification, oblivious of its consequence and other ramification on the investors which include small investors also who put in their hard earned money in the shares of the company and later comes to know that the shares were tainted on which the investor has absolutely no role or control. 24. Even if we were to appreciate certain limitations on the discharge of duties of certification by the Custodian, the Special Court clearly had the duty to ensure that in absence of a statutory time limit prescribed for certification of shares under the Act of 1956, read with the Special Courts Act of 1992, the Special Court was duty bound to guard the interest of the investors through the Custodian at least in case of those investors who had bonafide purchased the shares of a notified company which for reasons beyond the control of investors, was held to be tainted. 25. Hence, in our considered opinion, the appellant under the facts and existing circumstances of the case where he ended up buying tainted shares for no fault on his part but had to seek its certification from the Custodian under compelling circumstance which was not his creation and also had no control, could not have been denied his due on the ground of delay in filing the application for certification specially when the appellant had sought certification of his shares only after two months of the cut off date for reasons beyond his control which cut off date has no statutory effect or legal force. The appellant on the one hand was saddled with the tainted shares for no fault on his part through respondent Nos. 4, 5 and 6 on which he had no control or any role to play and on the top of it, when he sought a remedy of certification for claiming dividends, he had to suffer an order by which his application was rejected on the ground that he had not moved an application within the cut off date which had no statutory force as the same had been fixed at the instance of the Custodian seeking approval from the Special Court. 26. As a consequence of the aforesaid discussion,
### Response:
1
### Explanation:
, the appellant under the facts and existing circumstances of the case where he ended up buying tainted shares for no fault on his part but had to seek its certification from the Custodian under compelling circumstance which was not his creation and also had no control, could not have been denied his due on the ground of delay in filing the application for certification specially when the appellant had sought certification of his shares only after two months of thefor reasons beyond his control which cut off date has no statutory effect or legal force. Thesaddled with the tainted shares for no fault on his part through respondent Nos. 4, 5 and 6 on which he had no control or any role to play and on the top of it, when he sought a remedy of certification for claiming dividends, he had to suffer an order by which his application was rejected on the ground that he had not moved an application within the cut off date which had no statutory force as the same had been fixed at the instance of the Custodian seeking approval from the Special Court
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Sitaram Vs. State Of Madhya Pradesh
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Kapur, J. 1. There are two appeals directed against the order of the High Court of Madhya Pradesh reiecting a Reference made by the Sessions Judge against the prosecution of. the appellant for contravening the provisions of the C. P. and Berar Sales Tax Act (C. P. XXI of 1947), hereinafter called the Act. 2. A firm of which five brothers including the two appellants were partners submitted their sales tax returns for the quarters beginning June 1, 1947, to the quarters ending December 31, 1951. A .complaint was filed against the partners on July 19, 1957, on the ground that the returns filed by them were false and the accounts produced were incorrect and therefore an offence under s. 24(1)(b) and (g) of the Act was committed. 3. On December 12, 1958, an objection was taken by the accused. persons that under s. 26(2) of the Act, the prosecution could not be instituted as it was barred by time, having been instituted more than three months after the commission of the offence. The learned, Magistrate did not go into the objection on the ground that it was not the proper forum for raising the objection. Four revisions were taken to the Sessions Judge who on May 4, 1959, made a reference to the High Court for quashing the proceedings But the High Court rejected the reference on the ground that a person making a false return neither acts nor purports to act under the Act and therefore s. 26(2) is not applicable to him. It is against that order that these peals were brought by Special Leave. 4. In order to decide this question, it is necessary to refer to the relevant provisions of the Act. Under s. 10 of the Act every dealer is required to furnish a return when called upon to do so and every registered dealer is required to furnish returns by such dates as may be prescribed. The ap- pellants are registered dealers and they have made returns under that section. Section 15 deals with production and inspection of accounts and s. 24 enumerates the offenses under the Act. The alleged offence of the appellants falls under is. 34(1) (b) and (g). i..e. failing without sufficient use to submit any return or furnishing false returns and knowingly producing incorrect accounts, registers or documents or knowingly furnishing incorrect information. Section 26 relates to the protection of persons acting in good faith and limitation for suits and prosecutions. The section when quoted is as follows S. 26 (1) "No suit, prosecution or other legal proceedings shall lie against any servant of the Government for anything which is in good faith done or intended to be done under this Act or rules made thereunder.(2) No suit shall be instituted against the Government and no prosecution or suit shall be instituted against any person in respect of anything done or intended to be done under this Act unless the suit or prosecution has been instituted within three months from the date of the act complained of." 5. For the appellants, it was contended that the words "no prosecution or suit shall be, instituted against any person in respect of anything done" in sub-s. (2) of s. 26 cover their cases also and they fall within the words ", any person". The respondents submission on this point was that the two sub-sections of s. 26 should be read together and the intention of the Legislature was to give protection to Government servants in regard to prosecutions or other legal proceedings. That, in our opinion, is not *hat the words used in sub-s. (2) mean., They are words of wider import and would cover cases of all persons including persons other than Government servants. There are no words restricting the meaning of "any person" and no reason has been shown why those words should not include the appellants. 6. The ground on which the High Court rejected the Reference was that in its opinion the appellants neither acted nor purported to act under any of the provisions of the Act when they filed false returns or produced false accounts and in fact they were rendering. themselves liable to punishment under the provisions of s. 24 of the Act. It observed as follows:-"The test whether an act is done or intended to be done under a certain law might well be whether the person who committed it can, if challenged, reasonably justify his act under any provision contained in that law". 7. This opinion is, in our view, not sustainable. When the appellants submitted their returns they did so under s. 10 of the Act and when they produced their accounts they did so under s. 15 of the Act. Therefore both the making of the returns and production of the accounts were done under the Act and cannot be said to be outside the provisions of the Act.In our opinion the High Court was in error in rejecting the Reference.
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1[ds]That, in our opinion, is not *hat the words used in sub-s. (2) mean., They are words of wider import and would cover cases of all persons including persons other than Government servants. There are no words restricting the meaning of "any person" and no reason has been shown why those words should not include the appellantsThe ground on which the High Court rejected the Reference was that in its opinion the appellants neither acted nor purported to act under any of the provisions of the Act when they filed false returns or produced false accounts and in fact they were rendering. themselves liable to punishment under the provisions of s. 24 of the Act. It observed as follows:-"The test whether an act is done or intended to be done under a certain law might well be whether the person who committed it can, if challenged, reasonably justify his act under any provision contained in that law"This opinion is, in our view, not sustainable. When the appellants submitted their returns they did so under s. 10 of the Act and when they produced their accounts they did so under s. 15 of the Act. Therefore both the making of the returns and production of the accounts were done under the Act and cannot be said to be outside the provisions of the Act.In our opinion the High Court was in error in rejecting the Reference.
| 1 | 942 | 264 |
### 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:
Kapur, J. 1. There are two appeals directed against the order of the High Court of Madhya Pradesh reiecting a Reference made by the Sessions Judge against the prosecution of. the appellant for contravening the provisions of the C. P. and Berar Sales Tax Act (C. P. XXI of 1947), hereinafter called the Act. 2. A firm of which five brothers including the two appellants were partners submitted their sales tax returns for the quarters beginning June 1, 1947, to the quarters ending December 31, 1951. A .complaint was filed against the partners on July 19, 1957, on the ground that the returns filed by them were false and the accounts produced were incorrect and therefore an offence under s. 24(1)(b) and (g) of the Act was committed. 3. On December 12, 1958, an objection was taken by the accused. persons that under s. 26(2) of the Act, the prosecution could not be instituted as it was barred by time, having been instituted more than three months after the commission of the offence. The learned, Magistrate did not go into the objection on the ground that it was not the proper forum for raising the objection. Four revisions were taken to the Sessions Judge who on May 4, 1959, made a reference to the High Court for quashing the proceedings But the High Court rejected the reference on the ground that a person making a false return neither acts nor purports to act under the Act and therefore s. 26(2) is not applicable to him. It is against that order that these peals were brought by Special Leave. 4. In order to decide this question, it is necessary to refer to the relevant provisions of the Act. Under s. 10 of the Act every dealer is required to furnish a return when called upon to do so and every registered dealer is required to furnish returns by such dates as may be prescribed. The ap- pellants are registered dealers and they have made returns under that section. Section 15 deals with production and inspection of accounts and s. 24 enumerates the offenses under the Act. The alleged offence of the appellants falls under is. 34(1) (b) and (g). i..e. failing without sufficient use to submit any return or furnishing false returns and knowingly producing incorrect accounts, registers or documents or knowingly furnishing incorrect information. Section 26 relates to the protection of persons acting in good faith and limitation for suits and prosecutions. The section when quoted is as follows S. 26 (1) "No suit, prosecution or other legal proceedings shall lie against any servant of the Government for anything which is in good faith done or intended to be done under this Act or rules made thereunder.(2) No suit shall be instituted against the Government and no prosecution or suit shall be instituted against any person in respect of anything done or intended to be done under this Act unless the suit or prosecution has been instituted within three months from the date of the act complained of." 5. For the appellants, it was contended that the words "no prosecution or suit shall be, instituted against any person in respect of anything done" in sub-s. (2) of s. 26 cover their cases also and they fall within the words ", any person". The respondents submission on this point was that the two sub-sections of s. 26 should be read together and the intention of the Legislature was to give protection to Government servants in regard to prosecutions or other legal proceedings. That, in our opinion, is not *hat the words used in sub-s. (2) mean., They are words of wider import and would cover cases of all persons including persons other than Government servants. There are no words restricting the meaning of "any person" and no reason has been shown why those words should not include the appellants. 6. The ground on which the High Court rejected the Reference was that in its opinion the appellants neither acted nor purported to act under any of the provisions of the Act when they filed false returns or produced false accounts and in fact they were rendering. themselves liable to punishment under the provisions of s. 24 of the Act. It observed as follows:-"The test whether an act is done or intended to be done under a certain law might well be whether the person who committed it can, if challenged, reasonably justify his act under any provision contained in that law". 7. This opinion is, in our view, not sustainable. When the appellants submitted their returns they did so under s. 10 of the Act and when they produced their accounts they did so under s. 15 of the Act. Therefore both the making of the returns and production of the accounts were done under the Act and cannot be said to be outside the provisions of the Act.In our opinion the High Court was in error in rejecting the Reference.
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1
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That, in our opinion, is not *hat the words used in sub-s. (2) mean., They are words of wider import and would cover cases of all persons including persons other than Government servants. There are no words restricting the meaning of "any person" and no reason has been shown why those words should not include the appellantsThe ground on which the High Court rejected the Reference was that in its opinion the appellants neither acted nor purported to act under any of the provisions of the Act when they filed false returns or produced false accounts and in fact they were rendering. themselves liable to punishment under the provisions of s. 24 of the Act. It observed as follows:-"The test whether an act is done or intended to be done under a certain law might well be whether the person who committed it can, if challenged, reasonably justify his act under any provision contained in that law"This opinion is, in our view, not sustainable. When the appellants submitted their returns they did so under s. 10 of the Act and when they produced their accounts they did so under s. 15 of the Act. Therefore both the making of the returns and production of the accounts were done under the Act and cannot be said to be outside the provisions of the Act.In our opinion the High Court was in error in rejecting the Reference.
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Kaprecon Sleeper Works Private Limited & Others Vs. Union of India, Through The Chairman Railway Board, Ex.Officio Principal Secretary, Ministry of Railway & Others
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in open tenders. On 2/7/1998, this court granted ad-interim ex parte stay to the effect and operation of impugned communications dated 18/10/1997 and 18/11/1997 in both the writ petitions. Interim orders were continued while admitting writ petitions on 11/11/1998 for final hearing. Petitioner in WP 1907/1998 claims that he supplied 6.75 lacs sleepers ie full quantity. He got payment at agreed rate for 4.72 lacks units and 81, 639 units have been paid at lesser rate ie 1997 tendered rate. Difference in amount, however, has been later on made over to said petitioner which is contingent upon the result of present adjudication. Remaining 1,20,861 units have been paid for at new or lesser or tendered rate. Civil application 4421/2005 has been preferred to bring these subsequent events on record. Petitioners in the petition 1908/1998 has filed civil application 4420/2006 pointing out that it has received less payment for 33,002 concrete sleepers. Said petitioner also claims agreed contractual rate for balance 1,46,998 sleepers and contends that 1997 tendered rate cannot be made applicable to this quantity. The total price difference claimed is Rs. 1,42,32,346/ for balance quantity of 146998 sleepers. Declaration of entitlement to retain differential amount of Rs.39,18,235/ received because of interim orders of this court is also claimed. Difference in price per sleeper as per contractual rate and 1997 tendered rate therefore is roughly of Rs. 100/- or more. Thus for the first time when tender process was resorted to, Railway received competitive and lesser rates than quoted by respective petitioners under repeat orders. Otherwise, both the petitioners would have merrily continued to charge more rate & earned unfair or wrongful profits.26. Power to vary requirement of sleepers is reserved by Board and they have brought down the order quantity by 30%. This reduction obviously relates to total contractual number of units & not having any bearing on quantity still to be manufactured or supplied. Such reduction is in sole discretion of the purchaser, even as per agreed terms of contract. Variation in number of units needed will have impact on developmental activities of Railways & hence, has to be approved at Board level on the recommendation of the Zonal Railway. Condition of approval of Board or need of recommendation of the zonal authority therefor, is not for protection of petitioners but to safeguard the functioning of Railways & its administration. Here for valid reasons, contractual quantity has been brought down within permissible limits in public interest. Petitioners have not shown that the Board has curtailed the number of sleepers to be used by the Railways & their decision (impugned herein) prejudices the development works of Railway. None of the petitioners have demonstrated that their factory or establishment has suffered any loss because their machinery or manpower was lying idle. In fact, there is no such plea or proof. Railways only shifted the quantity reduced from repeat contract purchase to new tender contract purchase. Rates offered by petitioners in 1997 for tender purchase are to be paid to them for said quantity. Manufacturing activity of the petitioners continued unhampered & they do not point out any adverse effect even in civil applications filed to bring on record the relevant subsequent events. In effect, their profit margin only has been reduced to certain extent and no loss as such is suffered by them. They only stand to gain less profit than expected. When earlier rate ie contractual rate was not arrived at after following transparent procedure flowing from Art. 14 of the Constitution of India, grievance of such a nature and of less profit cannot be entertained in the writ jurisdiction. Petitioners who have supplied earlier quantity at a much more rate have themselves quoted lesser rate in open competitive bidding. This conduct shows that earlier rate quoted by them has not been equitable and fair. It is not their argument that they quoted lesser rate in open tender because of more payment expected by them under repeat order. Not getting that profit ie projected expected profit did not have any adverse impact on their business. Action of public authority like Railway in avoiding loss of public revenue cannot be said to be arbitrary or erroneous. It is not malafide. Petitioners abused their standing in market for several years & earned undue profits by charging Railways exorbitantly for sleepers which tantamount to nothing but causing wrongful loss to the public revenue. When constrained by the respondents & circumstances, they chose to offer lesser rates. We therefore find that no legal injury was suffered by any of the petitioners. Higher rate claimed by them even after acceptance of their tendered rate cannot be allowed or granted. They also cannot retain the benefit derived under interim orders of this court. Their contention that the quantity has been brought down retrospectively by the respondents is also not justified & legally sound. There is no scope for intervention under Art. 226 of the Constitution of India for judicial review in such a contractual matter.27. Reliance is also placed by the learned Counsel for the petitioners upon the ruling of NitinIndustrial Associates, Khamgaon .vs. State of Maharashtra and Others reported in 1986 Mh.L.J. 474. In this case, the act of respondent nos. 1 and 2 in ignoring the tenders and then again without rejecting or terminating the same, proceeding to allocate the two items amongst the three parties by the said resolution dt.3.8.1984 was held to be bad in law and the said resolution was quashed.28. In our view, the respondent/Railway Authority in the case in hand acted within its right to examine the repeat orders granted to the petitioners after the Contract initially entered into was already concluded long back. Respondent/Railway Authority exercised discretion to save public money wherever possible to award the work to the appropriate competitive bidders in the larger interest of the Railway administration. We do not find any compelling ground in the facts and circumstances to interfere with discretion exercised by the respondent/Railways in exercise of the extraordinary writ Jurisdiction.
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0[ds]26. Power to vary requirement of sleepers is reserved by Board and they have brought down the order quantity by 30%. This reduction obviously relates to total contractual number of unitsnot having any bearing on quantity still to be manufactured or supplied. Such reduction is in sole discretion of the purchaser, even as per agreed terms of contract. Variation in number of units needed will have impact on developmental activities of Railwayshence, has to be approved at Board level on the recommendation of the Zonal Railway. Condition of approval of Board or need of recommendation of the zonal authority therefor, is not for protection of petitioners but to safeguard the functioning of Railwaysits administration. Here for valid reasons, contractual quantity has been brought down within permissible limits in public interest. Petitioners have not shown that the Board has curtailed the number of sleepers to be used by the Railwaystheir decision (impugned herein) prejudices the development works of Railway. None of the petitioners have demonstrated that their factory or establishment has suffered any loss because their machinery or manpower was lying idle. In fact, there is no such plea or proof. Railways only shifted the quantity reduced from repeat contract purchase to new tender contract purchase. Rates offered by petitioners in 1997 for tender purchase are to be paid to them for said quantity. Manufacturing activity of the petitioners continued unhamperedthey do not point out any adverse effect even in civil applications filed to bring on record the relevant subsequent events. In effect, their profit margin only has been reduced to certain extent and no loss as such is suffered by them. They only stand to gain less profit than expected. When earlier rate ie contractual rate was not arrived at after following transparent procedure flowing from Art. 14 of the Constitution of India, grievance of such a nature and of less profit cannot be entertained in the writ jurisdiction. Petitioners who have supplied earlier quantity at a much more rate have themselves quoted lesser rate in open competitive bidding. This conduct shows that earlier rate quoted by them has not been equitable and fair. It is not their argument that they quoted lesser rate in open tender because of more payment expected by them under repeat order. Not getting that profit ie projected expected profit did not have any adverse impact on their business. Action of public authority like Railway in avoiding loss of public revenue cannot be said to be arbitrary or erroneous. It is not malafide. Petitioners abused their standing in market for several yearsearned undue profits by charging Railways exorbitantly for sleepers which tantamount to nothing but causing wrongful loss to the public revenue. When constrained by the respondentscircumstances, they chose to offer lesser rates. We therefore find that no legal injury was suffered by any of the petitioners. Higher rate claimed by them even after acceptance of their tendered rate cannot be allowed or granted. They also cannot retain the benefit derived under interim orders of this court. Their contention that the quantity has been brought down retrospectively by the respondents is also not justifiedlegally sound. There is no scope for intervention under Art. 226 of the Constitution of India for judicial review in such a contractual matter.27. Reliance is also placed by the learned Counsel for the petitioners upon the ruling of NitinIndustrial Associates, Khamgaon .vs. State of Maharashtra and Others reported in 1986 Mh.L.J. 474. In this case, the act of respondent nos. 1 and 2 in ignoring the tenders and then again without rejecting or terminating the same, proceeding to allocate the two items amongst the three parties by the said resolution dt.3.8.1984 was held to be bad in law and the said resolution was quashed.The Respondents have pointed out that policy of allotting additional work to existing suppliers by issuing the repeat orders was discontinued in June 1997 and tenders were for the first time invited for supply of such units. Thus for the first time competitive bidding process was introduced and in it, Railway received offers to supply sleepers at a much lesser rates. Though there is some dispute about the exact difference in rate per unit offered to petitioners in the repeat contract and rate offered by petitioners in tender, we do not find it necessary to go into those details. Rate offered by petitioners for the same work in tender process is lower than the rate which they agreed to under repeat contract. If their stance is accepted, petitioners will be supplying same units at two different rates during same period. In any case, Railways will be purchasing sleepers at two different rates from same or different suppliers at onesame time. It looks not only anomalous but also arbitrary. Rate per unit determinedevolved through a valid competitive bidding is the only fairstandard rate constitutionally acceptable. When public revenue and public interest is involved, a situation leading to purchasing of sleepers at such standard ratehigher rate which derogates from fairnessspirit under Art. 14, can not be countenanced. It is apparent that effort of Railway to procure sleepers at such standard rate which is also less than the rate agreed with the petitioners cannot be said to be either arbitrary or erroneous or malafides exercise of power. In fact not taking the step as impugned in these petitions will be a fraud on public revenue8. In our view, the respondent/Railway Authority in the case in hand acted within its right to examine the repeat orders granted to the petitioners after the Contract initially entered into was already concluded long back. Respondent/Railway Authority exercised discretion to save public money wherever possible to award the work to the appropriate competitive bidders in the larger interest of the Railway administration. We do not find any compelling ground in the facts and circumstances to interfere with discretion exercised by the respondent/Railways in exercise of the extraordinary writ Jurisdiction.
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### 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:
in open tenders. On 2/7/1998, this court granted ad-interim ex parte stay to the effect and operation of impugned communications dated 18/10/1997 and 18/11/1997 in both the writ petitions. Interim orders were continued while admitting writ petitions on 11/11/1998 for final hearing. Petitioner in WP 1907/1998 claims that he supplied 6.75 lacs sleepers ie full quantity. He got payment at agreed rate for 4.72 lacks units and 81, 639 units have been paid at lesser rate ie 1997 tendered rate. Difference in amount, however, has been later on made over to said petitioner which is contingent upon the result of present adjudication. Remaining 1,20,861 units have been paid for at new or lesser or tendered rate. Civil application 4421/2005 has been preferred to bring these subsequent events on record. Petitioners in the petition 1908/1998 has filed civil application 4420/2006 pointing out that it has received less payment for 33,002 concrete sleepers. Said petitioner also claims agreed contractual rate for balance 1,46,998 sleepers and contends that 1997 tendered rate cannot be made applicable to this quantity. The total price difference claimed is Rs. 1,42,32,346/ for balance quantity of 146998 sleepers. Declaration of entitlement to retain differential amount of Rs.39,18,235/ received because of interim orders of this court is also claimed. Difference in price per sleeper as per contractual rate and 1997 tendered rate therefore is roughly of Rs. 100/- or more. Thus for the first time when tender process was resorted to, Railway received competitive and lesser rates than quoted by respective petitioners under repeat orders. Otherwise, both the petitioners would have merrily continued to charge more rate & earned unfair or wrongful profits.26. Power to vary requirement of sleepers is reserved by Board and they have brought down the order quantity by 30%. This reduction obviously relates to total contractual number of units & not having any bearing on quantity still to be manufactured or supplied. Such reduction is in sole discretion of the purchaser, even as per agreed terms of contract. Variation in number of units needed will have impact on developmental activities of Railways & hence, has to be approved at Board level on the recommendation of the Zonal Railway. Condition of approval of Board or need of recommendation of the zonal authority therefor, is not for protection of petitioners but to safeguard the functioning of Railways & its administration. Here for valid reasons, contractual quantity has been brought down within permissible limits in public interest. Petitioners have not shown that the Board has curtailed the number of sleepers to be used by the Railways & their decision (impugned herein) prejudices the development works of Railway. None of the petitioners have demonstrated that their factory or establishment has suffered any loss because their machinery or manpower was lying idle. In fact, there is no such plea or proof. Railways only shifted the quantity reduced from repeat contract purchase to new tender contract purchase. Rates offered by petitioners in 1997 for tender purchase are to be paid to them for said quantity. Manufacturing activity of the petitioners continued unhampered & they do not point out any adverse effect even in civil applications filed to bring on record the relevant subsequent events. In effect, their profit margin only has been reduced to certain extent and no loss as such is suffered by them. They only stand to gain less profit than expected. When earlier rate ie contractual rate was not arrived at after following transparent procedure flowing from Art. 14 of the Constitution of India, grievance of such a nature and of less profit cannot be entertained in the writ jurisdiction. Petitioners who have supplied earlier quantity at a much more rate have themselves quoted lesser rate in open competitive bidding. This conduct shows that earlier rate quoted by them has not been equitable and fair. It is not their argument that they quoted lesser rate in open tender because of more payment expected by them under repeat order. Not getting that profit ie projected expected profit did not have any adverse impact on their business. Action of public authority like Railway in avoiding loss of public revenue cannot be said to be arbitrary or erroneous. It is not malafide. Petitioners abused their standing in market for several years & earned undue profits by charging Railways exorbitantly for sleepers which tantamount to nothing but causing wrongful loss to the public revenue. When constrained by the respondents & circumstances, they chose to offer lesser rates. We therefore find that no legal injury was suffered by any of the petitioners. Higher rate claimed by them even after acceptance of their tendered rate cannot be allowed or granted. They also cannot retain the benefit derived under interim orders of this court. Their contention that the quantity has been brought down retrospectively by the respondents is also not justified & legally sound. There is no scope for intervention under Art. 226 of the Constitution of India for judicial review in such a contractual matter.27. Reliance is also placed by the learned Counsel for the petitioners upon the ruling of NitinIndustrial Associates, Khamgaon .vs. State of Maharashtra and Others reported in 1986 Mh.L.J. 474. In this case, the act of respondent nos. 1 and 2 in ignoring the tenders and then again without rejecting or terminating the same, proceeding to allocate the two items amongst the three parties by the said resolution dt.3.8.1984 was held to be bad in law and the said resolution was quashed.28. In our view, the respondent/Railway Authority in the case in hand acted within its right to examine the repeat orders granted to the petitioners after the Contract initially entered into was already concluded long back. Respondent/Railway Authority exercised discretion to save public money wherever possible to award the work to the appropriate competitive bidders in the larger interest of the Railway administration. We do not find any compelling ground in the facts and circumstances to interfere with discretion exercised by the respondent/Railways in exercise of the extraordinary writ Jurisdiction.
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### Explanation:
26. Power to vary requirement of sleepers is reserved by Board and they have brought down the order quantity by 30%. This reduction obviously relates to total contractual number of unitsnot having any bearing on quantity still to be manufactured or supplied. Such reduction is in sole discretion of the purchaser, even as per agreed terms of contract. Variation in number of units needed will have impact on developmental activities of Railwayshence, has to be approved at Board level on the recommendation of the Zonal Railway. Condition of approval of Board or need of recommendation of the zonal authority therefor, is not for protection of petitioners but to safeguard the functioning of Railwaysits administration. Here for valid reasons, contractual quantity has been brought down within permissible limits in public interest. Petitioners have not shown that the Board has curtailed the number of sleepers to be used by the Railwaystheir decision (impugned herein) prejudices the development works of Railway. None of the petitioners have demonstrated that their factory or establishment has suffered any loss because their machinery or manpower was lying idle. In fact, there is no such plea or proof. Railways only shifted the quantity reduced from repeat contract purchase to new tender contract purchase. Rates offered by petitioners in 1997 for tender purchase are to be paid to them for said quantity. Manufacturing activity of the petitioners continued unhamperedthey do not point out any adverse effect even in civil applications filed to bring on record the relevant subsequent events. In effect, their profit margin only has been reduced to certain extent and no loss as such is suffered by them. They only stand to gain less profit than expected. When earlier rate ie contractual rate was not arrived at after following transparent procedure flowing from Art. 14 of the Constitution of India, grievance of such a nature and of less profit cannot be entertained in the writ jurisdiction. Petitioners who have supplied earlier quantity at a much more rate have themselves quoted lesser rate in open competitive bidding. This conduct shows that earlier rate quoted by them has not been equitable and fair. It is not their argument that they quoted lesser rate in open tender because of more payment expected by them under repeat order. Not getting that profit ie projected expected profit did not have any adverse impact on their business. Action of public authority like Railway in avoiding loss of public revenue cannot be said to be arbitrary or erroneous. It is not malafide. Petitioners abused their standing in market for several yearsearned undue profits by charging Railways exorbitantly for sleepers which tantamount to nothing but causing wrongful loss to the public revenue. When constrained by the respondentscircumstances, they chose to offer lesser rates. We therefore find that no legal injury was suffered by any of the petitioners. Higher rate claimed by them even after acceptance of their tendered rate cannot be allowed or granted. They also cannot retain the benefit derived under interim orders of this court. Their contention that the quantity has been brought down retrospectively by the respondents is also not justifiedlegally sound. There is no scope for intervention under Art. 226 of the Constitution of India for judicial review in such a contractual matter.27. Reliance is also placed by the learned Counsel for the petitioners upon the ruling of NitinIndustrial Associates, Khamgaon .vs. State of Maharashtra and Others reported in 1986 Mh.L.J. 474. In this case, the act of respondent nos. 1 and 2 in ignoring the tenders and then again without rejecting or terminating the same, proceeding to allocate the two items amongst the three parties by the said resolution dt.3.8.1984 was held to be bad in law and the said resolution was quashed.The Respondents have pointed out that policy of allotting additional work to existing suppliers by issuing the repeat orders was discontinued in June 1997 and tenders were for the first time invited for supply of such units. Thus for the first time competitive bidding process was introduced and in it, Railway received offers to supply sleepers at a much lesser rates. Though there is some dispute about the exact difference in rate per unit offered to petitioners in the repeat contract and rate offered by petitioners in tender, we do not find it necessary to go into those details. Rate offered by petitioners for the same work in tender process is lower than the rate which they agreed to under repeat contract. If their stance is accepted, petitioners will be supplying same units at two different rates during same period. In any case, Railways will be purchasing sleepers at two different rates from same or different suppliers at onesame time. It looks not only anomalous but also arbitrary. Rate per unit determinedevolved through a valid competitive bidding is the only fairstandard rate constitutionally acceptable. When public revenue and public interest is involved, a situation leading to purchasing of sleepers at such standard ratehigher rate which derogates from fairnessspirit under Art. 14, can not be countenanced. It is apparent that effort of Railway to procure sleepers at such standard rate which is also less than the rate agreed with the petitioners cannot be said to be either arbitrary or erroneous or malafides exercise of power. In fact not taking the step as impugned in these petitions will be a fraud on public revenue8. In our view, the respondent/Railway Authority in the case in hand acted within its right to examine the repeat orders granted to the petitioners after the Contract initially entered into was already concluded long back. Respondent/Railway Authority exercised discretion to save public money wherever possible to award the work to the appropriate competitive bidders in the larger interest of the Railway administration. We do not find any compelling ground in the facts and circumstances to interfere with discretion exercised by the respondent/Railways in exercise of the extraordinary writ Jurisdiction.
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State of Kerala Vs. General Manager, Southern Railway, Madras
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to a railway, the General Manager of that railway. The above provision clearly contemplates institution of a suit against the Central Government even though it relates to a rail way. A suit against the Central Government in terms of section 79 of the Code would necessarily have to be brought against the Union of India.5. The Act no doubt makes provision for the liability of the railway ad ministration, but from that it does not follow that the railway administration is a separate legal entity having a juristic personality capable of being sued as such. The definition of "railway administration" in section 3(6) of the Act that it would mean the Manager of the railway does not warrant the inference that a suit against the railway administration can be brought against the Manager of that railway. We have to bear in mind the distinction between the owner of the railway, namely, the Union of India, and the authority which actually runs the railway and to whom duties have been assigned for this purpose by the Act. The manager of the railway under the Act is such authority. When, however, liability is sought to be fastened on the railway administration and a suit is brought against it on that account, the suit, in our opinion, would have to be brought against the Union of India because it is the Union who owns the railway and who would have the funds to satisfy the claim in case decree is awarded in such suit.6. The scheme of the Act, even though there are now hardly any company-owned railways in India, is to treat different railway administrations as different units, although all of them may be owned by the Union of India. Neither the definition of the "railway administration" in section 3(6) of the Act nor the language of sections 72 to 80 of the Act lends support for the view that the railway administrations are to be treated as separate personalities, entities or separate juridical persons as seems to have been observed in the case of Dominion India v. Firm Museram Kishunprasad (A.I.R. (1950) Nagpur 85). Yet the treatment of the different railway administrations as different units for the purpose of fastening liability on the Union of India has got significance and relevance. Viewed in that light, it would follow that the definition of the "railway administration" given in section 3(6) of the Act does not make the railway administration or its General Manager a legal entity or a corporate body or a juridical person to represent the railway administration as such in suits. The claim in a suit for recovery of money under the Act against the different railway administrations owned by the Central Government in accordance with the general principle of law contained in Order 1 Rule 3 of the Code of Civil Procedure has got to be made against the person against whom the right to relief is alleged to exist. The significance of creating the various railway administrations as separate units, even though they may be State owned, is to be found in section 80 of the Act, and section 80 of the Code of Civil Procedure. For claiming a decree against the Union of India under the Act the plaintiff has got to specify the railway administration or administrations on ac count of which liability is sought to be fastened upon the Union of India, as contemplated by section 80 of the Act. The institution of the suit has to be preceded by service of notice under section 77 of the Act and section 80 of the Code to the appropriate authority which is the General Manager of the railway concerned. The requirement of clause (b) of section 80 of the Code that a notice in the case of a suit against the Central Government where it relates to a railway must go to the General Manager of the concerned railway or railways is also based upon the assumption that it is primarily the liability of the railway administration of the said railway or railways to satisfy the claim of the suitor in accordance with section 80 of the Act. The demarcation of the different State-owned railways as distinct units for administrative and fiscal purposes cannot have the effect of conferring the status of juridical person upon the respective railway administrations or their General Managers for the purpose of civil suits.7. The Bombay High Court in two cases, Sukhanand Shamlal v. Oudh & Rohilkhand Railway (A.I.R. 1924 Bombay 306.) and Hirachand Succaram Gandhy & Ors. v. G.I.P. Railway Co. (A.I.R. 1928 Bombay 421.) has held that a suit against a State railway should be brought against the Government. Similar view was pressed by Patna High Court in Shaikh Elahi Bakhsh v. E.I. Railway, Administration (A-I.R. 1931 Patna 326.) and a Full Bench of Assam High Court in the case Chandra Mohan Saha & Anr. v. Union of India & Anr. (A.I.R. 1953 Assam 193.) The observations of a Division Bench of the Madras High Court in the case of P.R. Narayanaswami lyer & Ors. v. Union of India (A.I.R. 1960 Madras 58) also lend support to the above view. It may be stated that the reasoning employed in the eases mentioned above was different and not identical, but whatever might be the nature of that reasoning the fact remains that the learned Judges deciding those cases were all at one on the point that such a suit should be brought against the Government, which means in the present case the Union of India. Any contrary view would be against the well-established practice and procedure of law, as evidenced by various decisions of the High Courts, and as such, must be rejected.Submission has also been made on behalf of the appellant that the High Court should have allowed the appellant to amend the plaint. We agree with the High Court that the present is not an appropriate case in which permission to amend the plaint should have been granted.8.
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0[ds]The above argument has the quality of being ingenious, attractive and not lacking in apparent plausibility. A closer examination, however, reveals its infirmity and after giving the matter our earnest consideration, we find it difficult to accept it. The Act deals with and specifies, inter alia, the rights and liabilities which arise in case the goods consigned to the railways are not delivered to theAct no doubt makes provision for the liability of the railway ad ministration, but from that it does not follow that the railway administration is a separate legal entity having a juristic personality capable of being sued as such. The definition of "railway administration" in section 3(6) of the Act that it would mean the Manager of the railway does not warrant the inference that a suit against the railway administration can be brought against the Manager of that railway. We have to bear in mind the distinction between the owner of the railway, namely, the Union of India, and the authority which actually runs the railway and to whom duties have been assigned for this purpose by the Act. The manager of the railway under the Act is such authority. When, however, liability is sought to be fastened on the railway administration and a suit is brought against it on that account, the suit, in our opinion, would have to be brought against the Union of India because it is the Union who owns the railway and who would have the funds to satisfy the claim in case decree is awarded in suchclaiming a decree against the Union of India under the Act the plaintiff has got to specify the railway administration or administrations on ac count of which liability is sought to be fastened upon the Union of India, as contemplated by section 80 of the Act. The institution of the suit has to be preceded by service of notice under section 77 of the Act and section 80 of the Code to the appropriate authority which is the General Manager of the railway concerned. The requirement of clause (b) of section 80 of the Code that a notice in the case of a suit against the Central Government where it relates to a railway must go to the General Manager of the concerned railway or railways is also based upon the assumption that it is primarily the liability of the railway administration of the said railway or railways to satisfy the claim of the suitor in accordance with section 80 of the Act. The demarcation of the different State-owned railways as distinct units for administrative and fiscal purposes cannot have the effect of conferring the status of juridical person upon the respective railway administrations or their General Managers for the purpose of civilBombay High Court in two cases, Sukhanand Shamlal v. Oudh & Rohilkhand Railway (A.I.R. 1924 Bombay 306.) and Hirachand Succaram Gandhy & Ors. v. G.I.P. Railway Co. (A.I.R. 1928 Bombay 421.) has held that a suit against a State railway should be brought against the Government. Similar view was pressed by Patna High Court in Shaikh Elahi Bakhsh v. E.I. Railway, Administration (A-I.R. 1931 Patna 326.) and a Full Bench of Assam High Court in the case Chandra Mohan Saha & Anr. v. Union of India & Anr. (A.I.R. 1953 Assam 193.) The observations of a Division Bench of the Madras High Court in the case of P.R. Narayanaswami lyer & Ors. v. Union of India (A.I.R. 1960 Madras 58) also lend support to the above view. It may be stated that the reasoning employed in the eases mentioned above was different and not identical, but whatever might be the nature of that reasoning the fact remains that the learned Judges deciding those cases were all at one on the point that such a suit should be brought against the Government, which means in the present case the Union of India. Any contrary view would be against the well-established practice and procedure of law, as evidenced by various decisions of the High Courts, and as such, must be rejected.Submission has also been made on behalf of the appellant that the High Court should have allowed the appellant to amend the plaint. We agree with the High Court that the present is not an appropriate case in which permission to amend the plaint should have been granted.
| 0 | 2,689 | 800 |
### 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:
to a railway, the General Manager of that railway. The above provision clearly contemplates institution of a suit against the Central Government even though it relates to a rail way. A suit against the Central Government in terms of section 79 of the Code would necessarily have to be brought against the Union of India.5. The Act no doubt makes provision for the liability of the railway ad ministration, but from that it does not follow that the railway administration is a separate legal entity having a juristic personality capable of being sued as such. The definition of "railway administration" in section 3(6) of the Act that it would mean the Manager of the railway does not warrant the inference that a suit against the railway administration can be brought against the Manager of that railway. We have to bear in mind the distinction between the owner of the railway, namely, the Union of India, and the authority which actually runs the railway and to whom duties have been assigned for this purpose by the Act. The manager of the railway under the Act is such authority. When, however, liability is sought to be fastened on the railway administration and a suit is brought against it on that account, the suit, in our opinion, would have to be brought against the Union of India because it is the Union who owns the railway and who would have the funds to satisfy the claim in case decree is awarded in such suit.6. The scheme of the Act, even though there are now hardly any company-owned railways in India, is to treat different railway administrations as different units, although all of them may be owned by the Union of India. Neither the definition of the "railway administration" in section 3(6) of the Act nor the language of sections 72 to 80 of the Act lends support for the view that the railway administrations are to be treated as separate personalities, entities or separate juridical persons as seems to have been observed in the case of Dominion India v. Firm Museram Kishunprasad (A.I.R. (1950) Nagpur 85). Yet the treatment of the different railway administrations as different units for the purpose of fastening liability on the Union of India has got significance and relevance. Viewed in that light, it would follow that the definition of the "railway administration" given in section 3(6) of the Act does not make the railway administration or its General Manager a legal entity or a corporate body or a juridical person to represent the railway administration as such in suits. The claim in a suit for recovery of money under the Act against the different railway administrations owned by the Central Government in accordance with the general principle of law contained in Order 1 Rule 3 of the Code of Civil Procedure has got to be made against the person against whom the right to relief is alleged to exist. The significance of creating the various railway administrations as separate units, even though they may be State owned, is to be found in section 80 of the Act, and section 80 of the Code of Civil Procedure. For claiming a decree against the Union of India under the Act the plaintiff has got to specify the railway administration or administrations on ac count of which liability is sought to be fastened upon the Union of India, as contemplated by section 80 of the Act. The institution of the suit has to be preceded by service of notice under section 77 of the Act and section 80 of the Code to the appropriate authority which is the General Manager of the railway concerned. The requirement of clause (b) of section 80 of the Code that a notice in the case of a suit against the Central Government where it relates to a railway must go to the General Manager of the concerned railway or railways is also based upon the assumption that it is primarily the liability of the railway administration of the said railway or railways to satisfy the claim of the suitor in accordance with section 80 of the Act. The demarcation of the different State-owned railways as distinct units for administrative and fiscal purposes cannot have the effect of conferring the status of juridical person upon the respective railway administrations or their General Managers for the purpose of civil suits.7. The Bombay High Court in two cases, Sukhanand Shamlal v. Oudh & Rohilkhand Railway (A.I.R. 1924 Bombay 306.) and Hirachand Succaram Gandhy & Ors. v. G.I.P. Railway Co. (A.I.R. 1928 Bombay 421.) has held that a suit against a State railway should be brought against the Government. Similar view was pressed by Patna High Court in Shaikh Elahi Bakhsh v. E.I. Railway, Administration (A-I.R. 1931 Patna 326.) and a Full Bench of Assam High Court in the case Chandra Mohan Saha & Anr. v. Union of India & Anr. (A.I.R. 1953 Assam 193.) The observations of a Division Bench of the Madras High Court in the case of P.R. Narayanaswami lyer & Ors. v. Union of India (A.I.R. 1960 Madras 58) also lend support to the above view. It may be stated that the reasoning employed in the eases mentioned above was different and not identical, but whatever might be the nature of that reasoning the fact remains that the learned Judges deciding those cases were all at one on the point that such a suit should be brought against the Government, which means in the present case the Union of India. Any contrary view would be against the well-established practice and procedure of law, as evidenced by various decisions of the High Courts, and as such, must be rejected.Submission has also been made on behalf of the appellant that the High Court should have allowed the appellant to amend the plaint. We agree with the High Court that the present is not an appropriate case in which permission to amend the plaint should have been granted.8.
### Response:
0
### Explanation:
The above argument has the quality of being ingenious, attractive and not lacking in apparent plausibility. A closer examination, however, reveals its infirmity and after giving the matter our earnest consideration, we find it difficult to accept it. The Act deals with and specifies, inter alia, the rights and liabilities which arise in case the goods consigned to the railways are not delivered to theAct no doubt makes provision for the liability of the railway ad ministration, but from that it does not follow that the railway administration is a separate legal entity having a juristic personality capable of being sued as such. The definition of "railway administration" in section 3(6) of the Act that it would mean the Manager of the railway does not warrant the inference that a suit against the railway administration can be brought against the Manager of that railway. We have to bear in mind the distinction between the owner of the railway, namely, the Union of India, and the authority which actually runs the railway and to whom duties have been assigned for this purpose by the Act. The manager of the railway under the Act is such authority. When, however, liability is sought to be fastened on the railway administration and a suit is brought against it on that account, the suit, in our opinion, would have to be brought against the Union of India because it is the Union who owns the railway and who would have the funds to satisfy the claim in case decree is awarded in suchclaiming a decree against the Union of India under the Act the plaintiff has got to specify the railway administration or administrations on ac count of which liability is sought to be fastened upon the Union of India, as contemplated by section 80 of the Act. The institution of the suit has to be preceded by service of notice under section 77 of the Act and section 80 of the Code to the appropriate authority which is the General Manager of the railway concerned. The requirement of clause (b) of section 80 of the Code that a notice in the case of a suit against the Central Government where it relates to a railway must go to the General Manager of the concerned railway or railways is also based upon the assumption that it is primarily the liability of the railway administration of the said railway or railways to satisfy the claim of the suitor in accordance with section 80 of the Act. The demarcation of the different State-owned railways as distinct units for administrative and fiscal purposes cannot have the effect of conferring the status of juridical person upon the respective railway administrations or their General Managers for the purpose of civilBombay High Court in two cases, Sukhanand Shamlal v. Oudh & Rohilkhand Railway (A.I.R. 1924 Bombay 306.) and Hirachand Succaram Gandhy & Ors. v. G.I.P. Railway Co. (A.I.R. 1928 Bombay 421.) has held that a suit against a State railway should be brought against the Government. Similar view was pressed by Patna High Court in Shaikh Elahi Bakhsh v. E.I. Railway, Administration (A-I.R. 1931 Patna 326.) and a Full Bench of Assam High Court in the case Chandra Mohan Saha & Anr. v. Union of India & Anr. (A.I.R. 1953 Assam 193.) The observations of a Division Bench of the Madras High Court in the case of P.R. Narayanaswami lyer & Ors. v. Union of India (A.I.R. 1960 Madras 58) also lend support to the above view. It may be stated that the reasoning employed in the eases mentioned above was different and not identical, but whatever might be the nature of that reasoning the fact remains that the learned Judges deciding those cases were all at one on the point that such a suit should be brought against the Government, which means in the present case the Union of India. Any contrary view would be against the well-established practice and procedure of law, as evidenced by various decisions of the High Courts, and as such, must be rejected.Submission has also been made on behalf of the appellant that the High Court should have allowed the appellant to amend the plaint. We agree with the High Court that the present is not an appropriate case in which permission to amend the plaint should have been granted.
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Bachan Singh Vs. Dhian Dass & Others
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His son Krishna Singh sued for a declaration that the said alienation being an alienation of ancestral properties was inoperative against his reversionary interest as it had been effected without consideration and without legal necessity. This suit was filed on October 11, 1895. The suit was decreed in part. The decree declared that the plaintiff Krishna Singh will be entitled to recover possession of the suit properties after the death of his father on payment of Rs. 2,500/-. This decree was made on November 28, 1895. But Krishna Singh died during the lifetime of Tehal Singh. Thereafter Tehal Singh adopted the appellant on April 11, 1944. Tehal Singh died in 1949. The present suit was brought in 1959. 3. The trial court dismissed the suit as being barred under the provisions of the Punjab Limitation (Custom) Act, 1920 (Act 1 of 1920). That decision was affirmed by the first appellate court as well as by the High Court in second appeal. 4. The material portion of S. 5 of the Punjab Limitation (Custom) Act, 1920 runs;"Notwithstanding anything to the contrary contained in the 1st. Schedule of the said Act (Indian Limitation Act 1908), every suit, of any description specified in the Schedule annexed to this Act instituted after the period of limitation prescribed, therefore, in the Schedule shall be dismissed although limitation has not been set up as a defence." Article 2 (a) of the Shedule provides :"Description of suit Period of limitation 2 (A) suit for possession of ancestral immovable property which has been alienated on the ground that the alienation is not binding on the plaintiff according to custom (a) if no declaratory decree of the nature referred to in Art. 1 is obtained. 6 years (b) if such a declaratory decree is obtained. 3 years". 5. It was conceded at the bar that if the suit property is held to be the ancestral property qua Tehal Singh then the relevant period of limitation is that prescribed in Clause (b) of Article 2 (A) of the Punjab Limitation (Custom) Act, 1920." 6. The first contention taken on behalf of the appellant is that the provisions of the Punjab Limitation (Custom) Act, 1920 do not apply to the facts of the present case as the suit properties were not the family properties of Tehal Singh. This contention does not appear to have been taken either before the trial court or before the first time before the High Court in second appeal. The High Court considered that contention and rejected the same. In our opinion, the High Court should not have allowed that contention to be raised for the first time in second appeal as a decision on that contention involved determination of question of fact. 7. Prima facie the contention of the appellant that the suit properties were not ancestral in the hands of Tehal Singh is unsustainable. If those properties were not ancestral properties of Tehal Singh, Krishna Singh could not have interdicted the sale effected by his father. The very basis of the present suit is the decree obtained by Krishna Singh. Hence we are unable to accept the contention that the suit properties were not ancestral in the hands of Tehal Singh. 8. The next contention taken on behalf of the appellant is that the preiod of limitation fixed for filing the suit under Article 2 (A) of the Punjab Limitation (Custom) Act, 1920 stood suspended because of the general principles of suspension of limitation or right of action. In order to appreciate this contention, it is necessary to state a few more facts. After the death of Tehal Singh, his collaterals contested the genuineness and validity of the adoption of the appellant. The revenue authorities refused to transfer the registry in the name of the appellant until his title was established in a civil court. Consequenlty the appellant sued for a declaration that he had been validly adopted by Tehal Singh. This suit was dismissed by the trial court. But the first appellate court allowed the appeal of the appellant and decreed his suit in 1952. Thereafter the opposite party took up the matter in second appeal to the High Court. The second appeal was dismissed in 1959. It may be noted that to that litigation, the present defedants or their predecessors-in-title were not parties. It was contended on behalf of the appellant that because of the litigation between the appellant and the collaterals of his adoptive father, the period of limitation for filing the present suit stood suspended. 9. Quite clearly the appellant cannot get the benefit of either Section 14 ot Section 15 of the Limitation Act, 1908. The previous litigation was not a litigation between the parties to the present suit or between their predecessors-in-title. Section 15 of the Limitation Act is equally inapplicable as the appellant was not restrained from filing the suit from which this appeal has arisen for any of the reasons mentioned in that section. Hence the appellant was compelled to fall back on what is called the general principles of suspension of limitation or right of action. In support of this contention reliance was primarily placed on the decision of the High Court of Allahabad in Murli Dhar v. Ram Saran Dass, ILR (1946) All 633 = (AIR 1947 All 256). We have not thought it necessary to examine whether the provisions of the Limitation Act, 1908 were exhaustive and whether it can be said that there are any general principles of suspension of limitation or right of action in addition to those mentioned in that Act. Admittedly the appellants title was cleared in 1952 when the first appellate court declared that he had been lawfully adopted as the son of Tehal Singh. This cleared his way - if clearing of the way was necessary - for instituting the suit for possession against the defendants. He had no justification either in law or in equity for not suing the defendants for possession of the suit properties thereafter.
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0[ds]6. The first contention taken on behalf of the appellant is that the provisions of the Punjab Limitation (Custom) Act, 1920 do not apply to the facts of the present case as the suit properties were not the family properties of TehalSingh. Thiscontention does not appear to have been taken either before the trial court or before the first time before the High Court in second appeal. The High Court considered that contention and rejected the same. In our opinion, the High Court should not have allowed that contention to be raised for the first time in second appeal as a decision on that contention involved determination of question of fact9. Quite clearly the appellant cannot get the benefit of either Section 14 ot Section 15 of the Limitation Act, 1908. The previous litigation was not a litigation between the parties to the present suit or between their. Section 15 of the Limitation Act is equally inapplicable as the appellant was not restrained from filing the suit from which this appeal has arisen for any of the reasons mentioned in that section. Hence the appellant was compelled to fall back on what is called the general principles of suspension of limitation or right of action. In support of this contention reliance was primarily placed on the decision of the High Court of Allahabad in Murli Dhar v. Ram Saran Dass, ILR (1946) All 633 = (AIR 1947 All 256). We have not thought it necessary to examine whether the provisions of the Limitation Act, 1908 were exhaustive and whether it can be said that there are any general principles of suspension of limitation or right of action in addition to those mentioned in that Act. Admittedly the appellants title was cleared in 1952 when the first appellate court declared that he had been lawfully adopted as the son of TehalSingh. Thiscleared his wayif clearing of the way was necessaryfor instituting the suit for possession against the defendants. He had no justification either in law or in equity for not suing the defendants for possession of the suit properties thereafter.
| 0 | 1,200 | 379 |
### 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:
His son Krishna Singh sued for a declaration that the said alienation being an alienation of ancestral properties was inoperative against his reversionary interest as it had been effected without consideration and without legal necessity. This suit was filed on October 11, 1895. The suit was decreed in part. The decree declared that the plaintiff Krishna Singh will be entitled to recover possession of the suit properties after the death of his father on payment of Rs. 2,500/-. This decree was made on November 28, 1895. But Krishna Singh died during the lifetime of Tehal Singh. Thereafter Tehal Singh adopted the appellant on April 11, 1944. Tehal Singh died in 1949. The present suit was brought in 1959. 3. The trial court dismissed the suit as being barred under the provisions of the Punjab Limitation (Custom) Act, 1920 (Act 1 of 1920). That decision was affirmed by the first appellate court as well as by the High Court in second appeal. 4. The material portion of S. 5 of the Punjab Limitation (Custom) Act, 1920 runs;"Notwithstanding anything to the contrary contained in the 1st. Schedule of the said Act (Indian Limitation Act 1908), every suit, of any description specified in the Schedule annexed to this Act instituted after the period of limitation prescribed, therefore, in the Schedule shall be dismissed although limitation has not been set up as a defence." Article 2 (a) of the Shedule provides :"Description of suit Period of limitation 2 (A) suit for possession of ancestral immovable property which has been alienated on the ground that the alienation is not binding on the plaintiff according to custom (a) if no declaratory decree of the nature referred to in Art. 1 is obtained. 6 years (b) if such a declaratory decree is obtained. 3 years". 5. It was conceded at the bar that if the suit property is held to be the ancestral property qua Tehal Singh then the relevant period of limitation is that prescribed in Clause (b) of Article 2 (A) of the Punjab Limitation (Custom) Act, 1920." 6. The first contention taken on behalf of the appellant is that the provisions of the Punjab Limitation (Custom) Act, 1920 do not apply to the facts of the present case as the suit properties were not the family properties of Tehal Singh. This contention does not appear to have been taken either before the trial court or before the first time before the High Court in second appeal. The High Court considered that contention and rejected the same. In our opinion, the High Court should not have allowed that contention to be raised for the first time in second appeal as a decision on that contention involved determination of question of fact. 7. Prima facie the contention of the appellant that the suit properties were not ancestral in the hands of Tehal Singh is unsustainable. If those properties were not ancestral properties of Tehal Singh, Krishna Singh could not have interdicted the sale effected by his father. The very basis of the present suit is the decree obtained by Krishna Singh. Hence we are unable to accept the contention that the suit properties were not ancestral in the hands of Tehal Singh. 8. The next contention taken on behalf of the appellant is that the preiod of limitation fixed for filing the suit under Article 2 (A) of the Punjab Limitation (Custom) Act, 1920 stood suspended because of the general principles of suspension of limitation or right of action. In order to appreciate this contention, it is necessary to state a few more facts. After the death of Tehal Singh, his collaterals contested the genuineness and validity of the adoption of the appellant. The revenue authorities refused to transfer the registry in the name of the appellant until his title was established in a civil court. Consequenlty the appellant sued for a declaration that he had been validly adopted by Tehal Singh. This suit was dismissed by the trial court. But the first appellate court allowed the appeal of the appellant and decreed his suit in 1952. Thereafter the opposite party took up the matter in second appeal to the High Court. The second appeal was dismissed in 1959. It may be noted that to that litigation, the present defedants or their predecessors-in-title were not parties. It was contended on behalf of the appellant that because of the litigation between the appellant and the collaterals of his adoptive father, the period of limitation for filing the present suit stood suspended. 9. Quite clearly the appellant cannot get the benefit of either Section 14 ot Section 15 of the Limitation Act, 1908. The previous litigation was not a litigation between the parties to the present suit or between their predecessors-in-title. Section 15 of the Limitation Act is equally inapplicable as the appellant was not restrained from filing the suit from which this appeal has arisen for any of the reasons mentioned in that section. Hence the appellant was compelled to fall back on what is called the general principles of suspension of limitation or right of action. In support of this contention reliance was primarily placed on the decision of the High Court of Allahabad in Murli Dhar v. Ram Saran Dass, ILR (1946) All 633 = (AIR 1947 All 256). We have not thought it necessary to examine whether the provisions of the Limitation Act, 1908 were exhaustive and whether it can be said that there are any general principles of suspension of limitation or right of action in addition to those mentioned in that Act. Admittedly the appellants title was cleared in 1952 when the first appellate court declared that he had been lawfully adopted as the son of Tehal Singh. This cleared his way - if clearing of the way was necessary - for instituting the suit for possession against the defendants. He had no justification either in law or in equity for not suing the defendants for possession of the suit properties thereafter.
### Response:
0
### Explanation:
6. The first contention taken on behalf of the appellant is that the provisions of the Punjab Limitation (Custom) Act, 1920 do not apply to the facts of the present case as the suit properties were not the family properties of TehalSingh. Thiscontention does not appear to have been taken either before the trial court or before the first time before the High Court in second appeal. The High Court considered that contention and rejected the same. In our opinion, the High Court should not have allowed that contention to be raised for the first time in second appeal as a decision on that contention involved determination of question of fact9. Quite clearly the appellant cannot get the benefit of either Section 14 ot Section 15 of the Limitation Act, 1908. The previous litigation was not a litigation between the parties to the present suit or between their. Section 15 of the Limitation Act is equally inapplicable as the appellant was not restrained from filing the suit from which this appeal has arisen for any of the reasons mentioned in that section. Hence the appellant was compelled to fall back on what is called the general principles of suspension of limitation or right of action. In support of this contention reliance was primarily placed on the decision of the High Court of Allahabad in Murli Dhar v. Ram Saran Dass, ILR (1946) All 633 = (AIR 1947 All 256). We have not thought it necessary to examine whether the provisions of the Limitation Act, 1908 were exhaustive and whether it can be said that there are any general principles of suspension of limitation or right of action in addition to those mentioned in that Act. Admittedly the appellants title was cleared in 1952 when the first appellate court declared that he had been lawfully adopted as the son of TehalSingh. Thiscleared his wayif clearing of the way was necessaryfor instituting the suit for possession against the defendants. He had no justification either in law or in equity for not suing the defendants for possession of the suit properties thereafter.
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