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Goswami Krishna Murarilal Sharma Vs. Dhan Prakash and Others | Desai, J. 1. Special Leave granted. 2. With the consent of the parties, we decided to dispose of the appeal by a speaking order. The appellant-defendant filed first appeal No. 286 of 1961 in the High Court of Judicature at Allahabad against the judgment and decree of the learned Additional District Judge, Meerut by which the suit of the plaintiff-respondent was decreed declaring that the house involved in the appeal is a public temple and the shop involved in the dispute in the suit was property of the public trust. A further declaration was given that the defendants were not suitable persons to be trustees of public trust and therefore a scheme for the administration of the public trust be prepared and new trustees be appointed. 3. When this appeal, preferred by the appellant in the High Court came up for hearing, Shri Banerjee learned causal for the appellant stated that he had no further instructions in the matter and sought leave to withdraw from the case and on being so permitted he withdrew and then the Court proceeded to dismiss the appeal for failure of the appellant to appear and prosecute the appeal. 4. From a short cryptic Order of the High Court, it is difficult to call out why Shri Banerjee, learned Advocate, who appeared for the appellant sought leave to withdraw at the last minute and that too in the absence of the appellant. Assuming, if Mr. Banerjee made out cogent reasons for withdrawal, it is difficult to appreciate how while granting the request of Mr. Banerjee and recording his withdrawal from appeal, the Court straight away proceeded to dismiss the appeal for failure of the appellant to appear and to prosecute the appeal. It appears that thereafter the appellant filed an application for restoring the appeal by recalling the order dismissing it for the failure of the appellant to appear and prosecute the appeal. 5. The appellant made another application for restoring the appeal and hearing it on merits. The same was dismissed on April 23, 1979. 6. It appears that the appellant had engaged his advocate and at the hearing of the appeal ordinarily the presence of the parties is generally redundant. Learned Advocate appearing on either side is heard by the Court and the arguments are directed with reference to the trial courts record. Ordinarily, the personal presence of the parties is not even insisted upon at the hearing of the appeal. 7. Now, the appellant had engaged his advocate who withdrew, the reasons for withdrawal being known only to the learned Advocate and not ascertainable from the record. It is difficult to appreciate how the Court straight away proceeded to dismiss the appeal on the ground that the appellant in person is not present. It is all the more disquieting how the High Court declined to grant the application for restoration of appeal and to hear it on merits. Without dilating upon this point, relying on the decision of this Court in Rafiq v. Munshilal [(1981) 2 SCC 788] , we think that the appellants appeal which was admitted by the High Court should have been heard on merits after giving an opportunity to engage another advocate. | 1[ds]6. It appears that the appellant had engaged his advocate and at the hearing of the appeal ordinarily the presence of the parties is generally redundant. Learned Advocate appearing on either side is heard by the Court and the arguments are directed with reference to the trial courts record. Ordinarily, the personal presence of the parties is not even insisted upon at the hearing of the appeal7. Now, the appellant had engaged his advocate who withdrew, the reasons for withdrawal being known only to the learned Advocate and not ascertainable from the record. It is difficult to appreciate how the Court straight away proceeded to dismiss the appeal on the ground that the appellant in person is not present. It is all the more disquieting how the High Court declined to grant the application for restoration of appeal and to hear it on merits. Without dilating upon this point, relying on the decision of this Court in Rafiq v. Munshilal [(1981) 2 SCC 788] , we think that the appellants appeal which was admitted by the High Court should have been heard on merits after giving an opportunity to engage another advocate. | 1 | 580 | 212 | ### Instruction:
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Desai, J. 1. Special Leave granted. 2. With the consent of the parties, we decided to dispose of the appeal by a speaking order. The appellant-defendant filed first appeal No. 286 of 1961 in the High Court of Judicature at Allahabad against the judgment and decree of the learned Additional District Judge, Meerut by which the suit of the plaintiff-respondent was decreed declaring that the house involved in the appeal is a public temple and the shop involved in the dispute in the suit was property of the public trust. A further declaration was given that the defendants were not suitable persons to be trustees of public trust and therefore a scheme for the administration of the public trust be prepared and new trustees be appointed. 3. When this appeal, preferred by the appellant in the High Court came up for hearing, Shri Banerjee learned causal for the appellant stated that he had no further instructions in the matter and sought leave to withdraw from the case and on being so permitted he withdrew and then the Court proceeded to dismiss the appeal for failure of the appellant to appear and prosecute the appeal. 4. From a short cryptic Order of the High Court, it is difficult to call out why Shri Banerjee, learned Advocate, who appeared for the appellant sought leave to withdraw at the last minute and that too in the absence of the appellant. Assuming, if Mr. Banerjee made out cogent reasons for withdrawal, it is difficult to appreciate how while granting the request of Mr. Banerjee and recording his withdrawal from appeal, the Court straight away proceeded to dismiss the appeal for failure of the appellant to appear and to prosecute the appeal. It appears that thereafter the appellant filed an application for restoring the appeal by recalling the order dismissing it for the failure of the appellant to appear and prosecute the appeal. 5. The appellant made another application for restoring the appeal and hearing it on merits. The same was dismissed on April 23, 1979. 6. It appears that the appellant had engaged his advocate and at the hearing of the appeal ordinarily the presence of the parties is generally redundant. Learned Advocate appearing on either side is heard by the Court and the arguments are directed with reference to the trial courts record. Ordinarily, the personal presence of the parties is not even insisted upon at the hearing of the appeal. 7. Now, the appellant had engaged his advocate who withdrew, the reasons for withdrawal being known only to the learned Advocate and not ascertainable from the record. It is difficult to appreciate how the Court straight away proceeded to dismiss the appeal on the ground that the appellant in person is not present. It is all the more disquieting how the High Court declined to grant the application for restoration of appeal and to hear it on merits. Without dilating upon this point, relying on the decision of this Court in Rafiq v. Munshilal [(1981) 2 SCC 788] , we think that the appellants appeal which was admitted by the High Court should have been heard on merits after giving an opportunity to engage another advocate.
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6. It appears that the appellant had engaged his advocate and at the hearing of the appeal ordinarily the presence of the parties is generally redundant. Learned Advocate appearing on either side is heard by the Court and the arguments are directed with reference to the trial courts record. Ordinarily, the personal presence of the parties is not even insisted upon at the hearing of the appeal7. Now, the appellant had engaged his advocate who withdrew, the reasons for withdrawal being known only to the learned Advocate and not ascertainable from the record. It is difficult to appreciate how the Court straight away proceeded to dismiss the appeal on the ground that the appellant in person is not present. It is all the more disquieting how the High Court declined to grant the application for restoration of appeal and to hear it on merits. Without dilating upon this point, relying on the decision of this Court in Rafiq v. Munshilal [(1981) 2 SCC 788] , we think that the appellants appeal which was admitted by the High Court should have been heard on merits after giving an opportunity to engage another advocate.
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Shyabuddinsab Mohidinsab Akki Vs. The Gadag-Betgeri Municipal Boroughand Others | Bombay District Muncipal and Municipal Boroughs (Amendment) Act, 1954, came into force (hereinafter in this section referred to as the said date) and all elections to the office of the president or vice-president, held on or after the said date and before the coming into force of this Act, shall be deemed to be valid as if this Act bad been in force on the said date; and any person elected to the office of the president or vice-president at any of such elections shall not be deemed to have been illegally elected merely on the ground that the residue of the term of office of the municipality being less than one year at the time of such election, he would hold his office for a term less than one year in contravention of section 19 of the Bombay Municipal Boroughs Act, 1925, as it was in operation before the coming into force of this Act.(2)Nothing contained in this section shall affect the judgment, decree or order of any competent court, passed before the coming into force of this Act, holding any of such elections invalid on the ground specified in sub- section (1)".12. It has not been contended that section 19 as amended by Act LIV of 1954 does not in terms cover the elections now impugned, nor that section 3 of the amending Act quoted above is not retrospective; but it has been urged on behalf of the appellant that it is not retrospective to the extent of affecting pending proceedings. In terms the amendment in question is deemed to have come into force on the II the May 1954 on which date the amending Act XXXV of 1954 had come into force. Section 3 in terms also declares that all elections to the office of president and vice-president held on or after the 11th May 1954 and before the coming into force of the amending Act shall be deemed to have been valid. The section also declares in unequivocal terms that such an election shall not be questioned simply on the ground of contravention of section 19 on which the election of the 2nd and 3rd respondents bad been questioned before the High Court. The legislature apparently thought fit to declare beyond all controversy that an election of president or vice-president for the unexpired portion of the term of a municipality could not be questioned on the ground that the provisions of section 19 as it stood before the amendment had been contravened.But it was argued on behalf of the appellant that in terms the amendment had not been made applicable to pending litigation and that therefore this court should hold that the amendment did not have the effect of validating the elections which were already under challenge in a court. No authority has been cited before us in support of the contention that unless there are express words in the amending statute to the effect that the amendment shall apply to pending proceedings also, it cannot affect such proceedings. There is clear authority to the contrary in-the following dictum of Lord Reading, C.J. in the case of The King v. The General Commissioners of Income- tax for Southampton; Ex parte W. M. Singer ([1916] 2 K.B. 249, 259, ), -"I cannot accept the contention of the applicant that an enactment can only take away vested rights of action for which legal proceedings have been commenced if there are in the enactment express words to that effect. There is no authority for this proposition, and I do not see why in principle it should be the law. But it is necessary that clear language should be used to make the retrospective effect applicable to proceedings commenced before the passing of the statute".13. That was a case in which the Act in question had validated assessments made by commissioners for wrong parishes. It was held by the court that the retrospective effect of the relevant section extended to proceedings for a prohibition commenced before the Act came into force and the rule nisi for a prohibition was therefore discharged. In every case the language of the amending statute has to be examined to find out whether the legislature clearly intended even pending proceedings to be affected by such statute. A number of authorities were cited before us but it is only necessary to refer to the decision of their Lord- ships of the Judicial Committee in Mukerjee, Official Receiver v. Ramratan Kuer(1), which is clearly in point. In that case while an appeal had been pending before the Judicial Committee the amending Act had been passed clearly showing that the Act was retrospective in the sense that it applied to all cases of a particular description, without reference to pending litigation. In those circumstances their Lordships pointed out that if any saving were to be implied in favour of pending proceedings, then the provisions of the statute would largely be rendered nugatory. Those observations apply with full force to the present case, inasmuch as if any saving were to be implied in favour of cases pending on the date of the amendment, the words "all elections to the office of the president or vice- president, held on or after the said date and before the coming into force of this Act, shall be deemed to be valid" could not be given their full effect. As there are no such saving clauses in express or implied terms, it must be held that the amendment was clearly intended by the legislature to apply to all cases of election of president or vice- president, whether or not the matter had been taken to court. it is the duty of courts to give full effect to the intentions of the legislature as expressed in a statute. That being so, it must be held that the amending Act had the effect of curing any illegality or irregularity in the elections in question with reference to the provisions of section 19 of the Act.14. | 0[ds]In our opinion, it is unnecessary for the purpose of this case to pronounce upon the merits of that controversy in the view we take of the meeting of the 3rd August, 1954, assuming that the meeting of the 30th July, 1954 had been adjourned without authority.It is common ground that it was the Collector who called the meeting of the 30th July 1954 and that it was under instructions from the Collector that meeting was adjourned. Under the provisions of section 23(1) (A), on the expiry of the term of office of the president or vice-president as determined by the municipality under section 19(1) of the Act, a new president or vice-president shall be elected within 25 days from the date of such expiry. The provisions of section 19-A which relate to the procedure for calling a meeting of a newly constituted municipality for the election of a president and vice-president have been made applicable to the calling of a meeting and the procedure to be followed at such meeting for the election of a president. Section 19-A requires the Collector to call a meeting for holding such an election. Such a meeting shall be presided over by the Collector or such officer as the Collector may by order in writing appoint in this behalf. The Collector or his nominee, when presiding over such a meeting, shall have the same powers as the president of a municipalit by when presiding over a meeting of the municipality has, but shall not have the right towould thus appear that the meeting of the 3rd August 1954 for the election of the president had been called by the Collector who had authorized the Prant Officer to preside over that meeting and that the 2nd respondent was duly elected president. Under section 35(3) of the Act, for such a special general meeting three clear days notice has to be given "specifying the time and place at -which such meeting is to be held and the business to be transacted thereat shall be served upon the councillors, and posted up at the municipal office or the kacheri or some other public building in the municipal borough and also published in a local vernacular newspaper having a large circulation if such exists".It has been contended on behalf of the appellant that the notice required by section 35 (3) contemplates a written notice to be served and published in the manner specified, and that the meeting of the 3rd August 1954 could not be said to have been held after complying with the terms of sub-section (3) of sectionis evident from the provisions of that sub-section that though the presence of the public at such meetings may be desirable, it is not obligatory. The presence at or the absence from such a meeting of the members of the public has no legal consequence so far as the validity of the election is concerned. It must therefore be held that the meeting of the 3rd August, 1954 in substance, though not in form, complied with the requirements of the law for holding a valid special general meeting and that therefore that meeting was not invalid, assuming, as already said, that the order of the presiding authority adjourning the meeting of the 30th July, 1954 was not authorized. It has to be remembered in this connection that such a special general meeting can be presided over only by the Collector or the person authorized by him and if either the Collector or his nominee does not hold the meeting, it is not competent for councillors present to elect their own chairman for presiding over such a meeting. Therefore if the presiding authority admittedly under instructions from the Collector refused to proceed with the elections on the 30th July 1954, the councillors present could not hold a meeting of their own with a president of their own choice and transact the only business on the agenda, namely, the election of president. Hence, rightly or wrongly, if the meeting called for the 30th July was not held, another meeting had to be held for the purpose within 25 days of the occurrence of the vacancy. In this case, as a result of the expiry of the original term of office of the president and vice-president, another meeting giving the required three days statutory notice had to be held. The meeting held on the 3rd August 1954 was such a meeting. Indeed, there were some omissions in the manner of publication or service of the notice but those in law were mere irregularities which do not have the effect of vitiating the election held at that meeting. The election of the president therefore, if not otherwise invalid, could not be assailed on the ground of the irregularity in the service or publication of the notice, in the special circum- stances of this case. If all the councillors had not been present on the 30th July or had not been informed of the proposed meeting of the 3rd August 1954, other considerations may have arisen but in this case it is clear that there was absolutely no prejudice to any party or individual or the municipality as a whole. But it was further contended that the walking out of the 13 councillors rendered the meeting infructuous. In our opinion, such a result does not follow from the voluntary act of the 13 councillors who chose to walk out. It was not even suggested that there was no quorum for the special general meeting after the 13 councillors walked out.The next question is whether the provisions of section 19 (1) as they stood on the 3rd August 1954 render the election of the president and the vice-president on the 3rd August 1954 invalid as it was "for the remaining period of the quadrennium". The High Court has taken the view that the remaining period of the quadrennium would not necessarily end on the 9th July 1955, in view of the proviso to section 19(1)"that the term of office of such president or vice- president shall be deemed to extend to and expire with the date on which his successor is elected". In view of the events that have happened it is not necessary for us to pronounce on the correctness or otherwise of that decision. | 0 | 5,237 | 1,142 | ### Instruction:
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Bombay District Muncipal and Municipal Boroughs (Amendment) Act, 1954, came into force (hereinafter in this section referred to as the said date) and all elections to the office of the president or vice-president, held on or after the said date and before the coming into force of this Act, shall be deemed to be valid as if this Act bad been in force on the said date; and any person elected to the office of the president or vice-president at any of such elections shall not be deemed to have been illegally elected merely on the ground that the residue of the term of office of the municipality being less than one year at the time of such election, he would hold his office for a term less than one year in contravention of section 19 of the Bombay Municipal Boroughs Act, 1925, as it was in operation before the coming into force of this Act.(2)Nothing contained in this section shall affect the judgment, decree or order of any competent court, passed before the coming into force of this Act, holding any of such elections invalid on the ground specified in sub- section (1)".12. It has not been contended that section 19 as amended by Act LIV of 1954 does not in terms cover the elections now impugned, nor that section 3 of the amending Act quoted above is not retrospective; but it has been urged on behalf of the appellant that it is not retrospective to the extent of affecting pending proceedings. In terms the amendment in question is deemed to have come into force on the II the May 1954 on which date the amending Act XXXV of 1954 had come into force. Section 3 in terms also declares that all elections to the office of president and vice-president held on or after the 11th May 1954 and before the coming into force of the amending Act shall be deemed to have been valid. The section also declares in unequivocal terms that such an election shall not be questioned simply on the ground of contravention of section 19 on which the election of the 2nd and 3rd respondents bad been questioned before the High Court. The legislature apparently thought fit to declare beyond all controversy that an election of president or vice-president for the unexpired portion of the term of a municipality could not be questioned on the ground that the provisions of section 19 as it stood before the amendment had been contravened.But it was argued on behalf of the appellant that in terms the amendment had not been made applicable to pending litigation and that therefore this court should hold that the amendment did not have the effect of validating the elections which were already under challenge in a court. No authority has been cited before us in support of the contention that unless there are express words in the amending statute to the effect that the amendment shall apply to pending proceedings also, it cannot affect such proceedings. There is clear authority to the contrary in-the following dictum of Lord Reading, C.J. in the case of The King v. The General Commissioners of Income- tax for Southampton; Ex parte W. M. Singer ([1916] 2 K.B. 249, 259, ), -"I cannot accept the contention of the applicant that an enactment can only take away vested rights of action for which legal proceedings have been commenced if there are in the enactment express words to that effect. There is no authority for this proposition, and I do not see why in principle it should be the law. But it is necessary that clear language should be used to make the retrospective effect applicable to proceedings commenced before the passing of the statute".13. That was a case in which the Act in question had validated assessments made by commissioners for wrong parishes. It was held by the court that the retrospective effect of the relevant section extended to proceedings for a prohibition commenced before the Act came into force and the rule nisi for a prohibition was therefore discharged. In every case the language of the amending statute has to be examined to find out whether the legislature clearly intended even pending proceedings to be affected by such statute. A number of authorities were cited before us but it is only necessary to refer to the decision of their Lord- ships of the Judicial Committee in Mukerjee, Official Receiver v. Ramratan Kuer(1), which is clearly in point. In that case while an appeal had been pending before the Judicial Committee the amending Act had been passed clearly showing that the Act was retrospective in the sense that it applied to all cases of a particular description, without reference to pending litigation. In those circumstances their Lordships pointed out that if any saving were to be implied in favour of pending proceedings, then the provisions of the statute would largely be rendered nugatory. Those observations apply with full force to the present case, inasmuch as if any saving were to be implied in favour of cases pending on the date of the amendment, the words "all elections to the office of the president or vice- president, held on or after the said date and before the coming into force of this Act, shall be deemed to be valid" could not be given their full effect. As there are no such saving clauses in express or implied terms, it must be held that the amendment was clearly intended by the legislature to apply to all cases of election of president or vice- president, whether or not the matter had been taken to court. it is the duty of courts to give full effect to the intentions of the legislature as expressed in a statute. That being so, it must be held that the amending Act had the effect of curing any illegality or irregularity in the elections in question with reference to the provisions of section 19 of the Act.14.
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### Explanation:
was the Collector who called the meeting of the 30th July 1954 and that it was under instructions from the Collector that meeting was adjourned. Under the provisions of section 23(1) (A), on the expiry of the term of office of the president or vice-president as determined by the municipality under section 19(1) of the Act, a new president or vice-president shall be elected within 25 days from the date of such expiry. The provisions of section 19-A which relate to the procedure for calling a meeting of a newly constituted municipality for the election of a president and vice-president have been made applicable to the calling of a meeting and the procedure to be followed at such meeting for the election of a president. Section 19-A requires the Collector to call a meeting for holding such an election. Such a meeting shall be presided over by the Collector or such officer as the Collector may by order in writing appoint in this behalf. The Collector or his nominee, when presiding over such a meeting, shall have the same powers as the president of a municipalit by when presiding over a meeting of the municipality has, but shall not have the right towould thus appear that the meeting of the 3rd August 1954 for the election of the president had been called by the Collector who had authorized the Prant Officer to preside over that meeting and that the 2nd respondent was duly elected president. Under section 35(3) of the Act, for such a special general meeting three clear days notice has to be given "specifying the time and place at -which such meeting is to be held and the business to be transacted thereat shall be served upon the councillors, and posted up at the municipal office or the kacheri or some other public building in the municipal borough and also published in a local vernacular newspaper having a large circulation if such exists".It has been contended on behalf of the appellant that the notice required by section 35 (3) contemplates a written notice to be served and published in the manner specified, and that the meeting of the 3rd August 1954 could not be said to have been held after complying with the terms of sub-section (3) of sectionis evident from the provisions of that sub-section that though the presence of the public at such meetings may be desirable, it is not obligatory. The presence at or the absence from such a meeting of the members of the public has no legal consequence so far as the validity of the election is concerned. It must therefore be held that the meeting of the 3rd August, 1954 in substance, though not in form, complied with the requirements of the law for holding a valid special general meeting and that therefore that meeting was not invalid, assuming, as already said, that the order of the presiding authority adjourning the meeting of the 30th July, 1954 was not authorized. It has to be remembered in this connection that such a special general meeting can be presided over only by the Collector or the person authorized by him and if either the Collector or his nominee does not hold the meeting, it is not competent for councillors present to elect their own chairman for presiding over such a meeting. Therefore if the presiding authority admittedly under instructions from the Collector refused to proceed with the elections on the 30th July 1954, the councillors present could not hold a meeting of their own with a president of their own choice and transact the only business on the agenda, namely, the election of president. Hence, rightly or wrongly, if the meeting called for the 30th July was not held, another meeting had to be held for the purpose within 25 days of the occurrence of the vacancy. In this case, as a result of the expiry of the original term of office of the president and vice-president, another meeting giving the required three days statutory notice had to be held. The meeting held on the 3rd August 1954 was such a meeting. Indeed, there were some omissions in the manner of publication or service of the notice but those in law were mere irregularities which do not have the effect of vitiating the election held at that meeting. The election of the president therefore, if not otherwise invalid, could not be assailed on the ground of the irregularity in the service or publication of the notice, in the special circum- stances of this case. If all the councillors had not been present on the 30th July or had not been informed of the proposed meeting of the 3rd August 1954, other considerations may have arisen but in this case it is clear that there was absolutely no prejudice to any party or individual or the municipality as a whole. But it was further contended that the walking out of the 13 councillors rendered the meeting infructuous. In our opinion, such a result does not follow from the voluntary act of the 13 councillors who chose to walk out. It was not even suggested that there was no quorum for the special general meeting after the 13 councillors walked out.The next question is whether the provisions of section 19 (1) as they stood on the 3rd August 1954 render the election of the president and the vice-president on the 3rd August 1954 invalid as it was "for the remaining period of the quadrennium". The High Court has taken the view that the remaining period of the quadrennium would not necessarily end on the 9th July 1955, in view of the proviso to section 19(1)"that the term of office of such president or vice- president shall be deemed to extend to and expire with the date on which his successor is elected". In view of the events that have happened it is not necessary for us to pronounce on the correctness or otherwise of that decision.
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Dahya Lal And Others Vs. Rasul Mohammed Abdul Rahim | Act of 1948. The latter Act preserves the essential features of the Act of 1939 and provides for additional rights and protection to tenants such as fixation of reasonable rent, commutation of crop share into cash, right to produce of naturally growing trees on land, relief against termination of tenancy for non-payment of rent, special rights and privileges of protected tenants, vesting of estates in Government for management, restriction on transfer of agricultural land and the constitution of Special Tribunals for deciding disputes relating to value of land. The two Acts were manifestly steps in the process of agrarian reform launched with the object of improving the economic condition of the peasants and ensuring full and efficient use of land for agricultural purpose. The provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 must be viewed in the light of the social reform envisaged thereby.6. The Act of 1948, it is undisputed, seeks to encompass its beneficent provisions not only tenants who held land for purpose of cultivation under contracts from the owners but persons who are deemed to be tenants also. The point in controversy is whether a person claiming the status of a deemed tenant must have been cultivating land with the consent or under the authority of the owner. Counsel for the appellants submits that tenancy postulates a relation based on contract between the owner of land, and the person in occupation of the land, and there can be no tenancy without the consent or authority of the owner to the occupation of that land. But the Act has by S. 2 (18) devised a special definition of tenant and included therein persons who are not contractual tenants. It would therefore be difficult to assume in construing S. 4 that the person who claims the status of a deemed tenant must be cultivating land with the consent or authority of the owner. The relevant condition imposed by the statute is only that the person claiming the status of a deemed tenant must be cultivating land "lawfully: It is not the condition that he must cultivate land with the consent of or under authority derived directly from the owner. To import such a condition is to rewrite the section, and destroy its practical utility. A person who derives his right to cultivate land from the owners would normally be a contractual tenant and he will obviously not be a "deemed tenant. Persons such as licencees from the owner may certainly be regarded as falling within the class of persons lawfully cultivating land belonging to others, but it cannot be assumed therefrom that they are the only persons who are covered by the section. The Act affords protection to all persons who hold agricultural lands as contractual tenants and subject to the exceptions specified all persons lawfully cultivating lands belonging to others, and it would be unduly restricting the intention of the Legislature to limit the benefit of its provisions to persons who derive their authority from the owner, either under a contract of tenancy, or otherwise. In our view, all persons other than those mentioned in cls. (a), (b) and (c) of S. 4 who lawfully cultivate land belonging to other persons whether or not; their authority is derived directly from the owner of the land must be deemed tenants of the lands.7. Under the Transfer of Property Act, the right of a tenant who has been inducted by a mortgagee in possession ordinarily comes to an end with the extinction of the mortgage by redemption, but that rule, in our judgment, has no application in the interpretation of a statute which has been enacted with the object of granting protection to persons lawfully cultivating agricultural lands. Nor has the contention that the expression "mortgagee in possession includes a tenant from such a mortgagee any force. A mortgagee in possession is excluded from the class of deemed tenants on grounds of public policy, to confer that status upon a mortgagee in possession would be to invest him with rights inconsistent with his fiduciary character. A transferee of the totality of the rights of a mortgagee in possession may also be deemed to be a mortgagee in possession. But a tenant of the mortgagee in possession is inducted on the land in the ordinary course of management under authority derived from the mortgagor and so long as the mortgage subsists, even under the ordinary law he is not liable to be evicted by the mortgagor. It appears that the Legislature by restricting the exclusion to mortgagees in possession from the class of deemed tenants intended that the tenant lawfully inducted by the mortgagee shall on redemption of the mortgage be deemed to be tenant of the mortgagor. In our view, therefore, the High Court was right in holding that the respondent was entitled to claim the protection of the Bombay Tenancy and Agricultural Lands Act, 1948 as a deemed tenant.8. One more argument about the jurisdiction of the High Court under Art. 227 of the Constitution to set aside the order of the Bombay Revenue Tribunal may be considered. The High Court in setting aside the order of the Revenue Tribunal exercised jurisdiction under Art. 227 of the Constitution, and it was urged by counsel for the appellants that this was not a fit case for exercise of that jurisdiction. But the Legislature has expressly prohibited, by S. 29(2) of the Act, landlords from obtaining possession of any lands otherwise than under an order of the Mamlatdar. The possession of the disputed land was obtained by the appellants in execution of the award of the debt adjustment court, and without an order of the Mamlatdar. The respondent was therefore unlawfully dispossessed of the land, and the Revenue Authorities in refusing to give him assistance illegally refused to exercise jurisdiction vested in them by law. The question being one of jurisdiction, the High Court was, in our view, competent to exercise the powers vested in it by Art. 227. | 0[ds]We are unable to agree with these contentions. The Bombay Tenancy Act of 1939 conferred protection upon tenants against eviction, converted all subsisting contractual tenancies for less than ten years into tenancies for ten years restricted the rights of landlords to obtain possession of land even on surrender, granted the status of protected tenants to all persons who had personally cultivated land for six years prior to the date specified, provided for fixation of maximum rates of rent, abolition of cesses and suspension and remission of rents in certain contingencies, and barred eviction of tenants from dwelling houses. The Act was found inadequate and was substituted by the Bombay Tenancy and Agricultural Lands Act of 1948. The latter Act preserves the essential features of the Act of 1939 and provides for additional rights and protection to tenants such as fixation of reasonable rent, commutation of crop share into cash, right to produce of naturally growing trees on land, relief against termination of tenancy for non-payment of rent, special rights and privileges of protected tenants, vesting of estates in Government for management, restriction on transfer of agricultural land and the constitution of Special Tribunals for deciding disputes relating to value of land. The two Acts were manifestly steps in the process of agrarian reform launched with the object of improving the economic condition of the peasants and ensuring full and efficient use of land for agricultural purpose. The provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 must be viewed in the light of the social reform envisaged thereby.6. The Act of 1948, it is undisputed, seeks to encompass its beneficent provisions not only tenants who held land for purpose of cultivation under contracts from the owners but persons who are deemed to be tenants also. The point in controversy iswhether a person claiming the status of a deemed tenant must have been cultivating land with the consent or under the authority of theCounsel for the appellants submits that tenancy postulates a relation based on contract between the owner of land, and the person in occupation of the land, and there can be no tenancy without the consent or authority of the owner to the occupation of that land. But the Act has by S. 2 (18) devised a special definition of tenant and included therein persons who are not contractual tenants. It would therefore be difficult to assume in construing S. 4 that the person who claims the status of a deemed tenant must be cultivating land with the consent or authority of the owner. The relevant condition imposed by the statute is only that the person claiming the status of a deemed tenant must be cultivating land "lawfully: It is not the condition that he must cultivate land with the consent of or under authority derived directly from the owner. To import such a condition is to rewrite the section, and destroy its practical utility. A person who derives his right to cultivate land from the owners would normally be a contractual tenant and he will obviously not be a "deemed tenant. Persons such as licencees from the owner may certainly be regarded as falling within the class of persons lawfully cultivating land belonging to others, but it cannot be assumed therefrom that they are the only persons who are covered by the section. The Act affords protection to all persons who hold agricultural lands as contractual tenants and subject to the exceptions specified all persons lawfully cultivating lands belonging to others, and it would be unduly restricting the intention of the Legislature to limit the benefit of its provisions to persons who derive their authority from the owner, either under a contract of tenancy, or otherwise. In our view, all persons other than those mentioned in cls. (a), (b) and (c) of S. 4 who lawfully cultivate land belonging to other persons whether or not; their authority is derived directly from the owner of the land must be deemed tenants of the lands.7. Under the Transfer of Property Act, the right of a tenant who has been inducted by a mortgagee in possession ordinarily comes to an end with the extinction of the mortgage by redemption, but that rule, in our judgment, has no application in the interpretation of a statute which has been enacted with the object of granting protection to persons lawfully cultivating agricultural lands. Nor has the contention that the expression "mortgagee in possession includes a tenant from such a mortgagee any force. A mortgagee in possession is excluded from the class of deemed tenants on grounds of public policy, to confer that status upon a mortgagee in possession would be to invest him with rights inconsistent with his fiduciary character. A transferee of the totality of the rights of a mortgagee in possession may also be deemed to be a mortgagee in possession. But a tenant of the mortgagee in possession is inducted on the land in the ordinary course of management under authority derived from the mortgagor and so long as the mortgage subsists, even under the ordinary law he is not liable to be evicted by the mortgagor. It appears that the Legislature by restricting the exclusion to mortgagees in possession from the class of deemed tenants intended that the tenant lawfully inducted by the mortgagee shall on redemption of the mortgage be deemed to be tenant of the mortgagor. In our view, therefore, the High Court was right in holding that the respondent was entitled to claim the protection of the Bombay Tenancy and Agricultural Lands Act, 1948 as a deemedHigh Court in setting aside the order of the Revenue Tribunal exercised jurisdiction under Art. 227 of the Constitution, and it was urged by counsel for the appellants that this was not a fit case for exercise of that jurisdiction. But the Legislature has expressly prohibited, by S. 29(2) of the Act, landlords from obtaining possession of any lands otherwise than under an order of the Mamlatdar. The possession of the disputed land was obtained by the appellants in execution of the award of the debt adjustment court, and without an order of the Mamlatdar. The respondent was therefore unlawfully dispossessed of the land, and the Revenue Authorities in refusing to give him assistance illegally refused to exercise jurisdiction vested in them by law. The question being one of jurisdiction, the High Court was, in our view, competent to exercise the powers vested in it by Art. 227. | 0 | 2,268 | 1,169 | ### 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:
Act of 1948. The latter Act preserves the essential features of the Act of 1939 and provides for additional rights and protection to tenants such as fixation of reasonable rent, commutation of crop share into cash, right to produce of naturally growing trees on land, relief against termination of tenancy for non-payment of rent, special rights and privileges of protected tenants, vesting of estates in Government for management, restriction on transfer of agricultural land and the constitution of Special Tribunals for deciding disputes relating to value of land. The two Acts were manifestly steps in the process of agrarian reform launched with the object of improving the economic condition of the peasants and ensuring full and efficient use of land for agricultural purpose. The provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 must be viewed in the light of the social reform envisaged thereby.6. The Act of 1948, it is undisputed, seeks to encompass its beneficent provisions not only tenants who held land for purpose of cultivation under contracts from the owners but persons who are deemed to be tenants also. The point in controversy is whether a person claiming the status of a deemed tenant must have been cultivating land with the consent or under the authority of the owner. Counsel for the appellants submits that tenancy postulates a relation based on contract between the owner of land, and the person in occupation of the land, and there can be no tenancy without the consent or authority of the owner to the occupation of that land. But the Act has by S. 2 (18) devised a special definition of tenant and included therein persons who are not contractual tenants. It would therefore be difficult to assume in construing S. 4 that the person who claims the status of a deemed tenant must be cultivating land with the consent or authority of the owner. The relevant condition imposed by the statute is only that the person claiming the status of a deemed tenant must be cultivating land "lawfully: It is not the condition that he must cultivate land with the consent of or under authority derived directly from the owner. To import such a condition is to rewrite the section, and destroy its practical utility. A person who derives his right to cultivate land from the owners would normally be a contractual tenant and he will obviously not be a "deemed tenant. Persons such as licencees from the owner may certainly be regarded as falling within the class of persons lawfully cultivating land belonging to others, but it cannot be assumed therefrom that they are the only persons who are covered by the section. The Act affords protection to all persons who hold agricultural lands as contractual tenants and subject to the exceptions specified all persons lawfully cultivating lands belonging to others, and it would be unduly restricting the intention of the Legislature to limit the benefit of its provisions to persons who derive their authority from the owner, either under a contract of tenancy, or otherwise. In our view, all persons other than those mentioned in cls. (a), (b) and (c) of S. 4 who lawfully cultivate land belonging to other persons whether or not; their authority is derived directly from the owner of the land must be deemed tenants of the lands.7. Under the Transfer of Property Act, the right of a tenant who has been inducted by a mortgagee in possession ordinarily comes to an end with the extinction of the mortgage by redemption, but that rule, in our judgment, has no application in the interpretation of a statute which has been enacted with the object of granting protection to persons lawfully cultivating agricultural lands. Nor has the contention that the expression "mortgagee in possession includes a tenant from such a mortgagee any force. A mortgagee in possession is excluded from the class of deemed tenants on grounds of public policy, to confer that status upon a mortgagee in possession would be to invest him with rights inconsistent with his fiduciary character. A transferee of the totality of the rights of a mortgagee in possession may also be deemed to be a mortgagee in possession. But a tenant of the mortgagee in possession is inducted on the land in the ordinary course of management under authority derived from the mortgagor and so long as the mortgage subsists, even under the ordinary law he is not liable to be evicted by the mortgagor. It appears that the Legislature by restricting the exclusion to mortgagees in possession from the class of deemed tenants intended that the tenant lawfully inducted by the mortgagee shall on redemption of the mortgage be deemed to be tenant of the mortgagor. In our view, therefore, the High Court was right in holding that the respondent was entitled to claim the protection of the Bombay Tenancy and Agricultural Lands Act, 1948 as a deemed tenant.8. One more argument about the jurisdiction of the High Court under Art. 227 of the Constitution to set aside the order of the Bombay Revenue Tribunal may be considered. The High Court in setting aside the order of the Revenue Tribunal exercised jurisdiction under Art. 227 of the Constitution, and it was urged by counsel for the appellants that this was not a fit case for exercise of that jurisdiction. But the Legislature has expressly prohibited, by S. 29(2) of the Act, landlords from obtaining possession of any lands otherwise than under an order of the Mamlatdar. The possession of the disputed land was obtained by the appellants in execution of the award of the debt adjustment court, and without an order of the Mamlatdar. The respondent was therefore unlawfully dispossessed of the land, and the Revenue Authorities in refusing to give him assistance illegally refused to exercise jurisdiction vested in them by law. The question being one of jurisdiction, the High Court was, in our view, competent to exercise the powers vested in it by Art. 227.
### Response:
0
### Explanation:
abolition of cesses and suspension and remission of rents in certain contingencies, and barred eviction of tenants from dwelling houses. The Act was found inadequate and was substituted by the Bombay Tenancy and Agricultural Lands Act of 1948. The latter Act preserves the essential features of the Act of 1939 and provides for additional rights and protection to tenants such as fixation of reasonable rent, commutation of crop share into cash, right to produce of naturally growing trees on land, relief against termination of tenancy for non-payment of rent, special rights and privileges of protected tenants, vesting of estates in Government for management, restriction on transfer of agricultural land and the constitution of Special Tribunals for deciding disputes relating to value of land. The two Acts were manifestly steps in the process of agrarian reform launched with the object of improving the economic condition of the peasants and ensuring full and efficient use of land for agricultural purpose. The provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 must be viewed in the light of the social reform envisaged thereby.6. The Act of 1948, it is undisputed, seeks to encompass its beneficent provisions not only tenants who held land for purpose of cultivation under contracts from the owners but persons who are deemed to be tenants also. The point in controversy iswhether a person claiming the status of a deemed tenant must have been cultivating land with the consent or under the authority of theCounsel for the appellants submits that tenancy postulates a relation based on contract between the owner of land, and the person in occupation of the land, and there can be no tenancy without the consent or authority of the owner to the occupation of that land. But the Act has by S. 2 (18) devised a special definition of tenant and included therein persons who are not contractual tenants. It would therefore be difficult to assume in construing S. 4 that the person who claims the status of a deemed tenant must be cultivating land with the consent or authority of the owner. The relevant condition imposed by the statute is only that the person claiming the status of a deemed tenant must be cultivating land "lawfully: It is not the condition that he must cultivate land with the consent of or under authority derived directly from the owner. To import such a condition is to rewrite the section, and destroy its practical utility. A person who derives his right to cultivate land from the owners would normally be a contractual tenant and he will obviously not be a "deemed tenant. Persons such as licencees from the owner may certainly be regarded as falling within the class of persons lawfully cultivating land belonging to others, but it cannot be assumed therefrom that they are the only persons who are covered by the section. The Act affords protection to all persons who hold agricultural lands as contractual tenants and subject to the exceptions specified all persons lawfully cultivating lands belonging to others, and it would be unduly restricting the intention of the Legislature to limit the benefit of its provisions to persons who derive their authority from the owner, either under a contract of tenancy, or otherwise. In our view, all persons other than those mentioned in cls. (a), (b) and (c) of S. 4 who lawfully cultivate land belonging to other persons whether or not; their authority is derived directly from the owner of the land must be deemed tenants of the lands.7. Under the Transfer of Property Act, the right of a tenant who has been inducted by a mortgagee in possession ordinarily comes to an end with the extinction of the mortgage by redemption, but that rule, in our judgment, has no application in the interpretation of a statute which has been enacted with the object of granting protection to persons lawfully cultivating agricultural lands. Nor has the contention that the expression "mortgagee in possession includes a tenant from such a mortgagee any force. A mortgagee in possession is excluded from the class of deemed tenants on grounds of public policy, to confer that status upon a mortgagee in possession would be to invest him with rights inconsistent with his fiduciary character. A transferee of the totality of the rights of a mortgagee in possession may also be deemed to be a mortgagee in possession. But a tenant of the mortgagee in possession is inducted on the land in the ordinary course of management under authority derived from the mortgagor and so long as the mortgage subsists, even under the ordinary law he is not liable to be evicted by the mortgagor. It appears that the Legislature by restricting the exclusion to mortgagees in possession from the class of deemed tenants intended that the tenant lawfully inducted by the mortgagee shall on redemption of the mortgage be deemed to be tenant of the mortgagor. In our view, therefore, the High Court was right in holding that the respondent was entitled to claim the protection of the Bombay Tenancy and Agricultural Lands Act, 1948 as a deemedHigh Court in setting aside the order of the Revenue Tribunal exercised jurisdiction under Art. 227 of the Constitution, and it was urged by counsel for the appellants that this was not a fit case for exercise of that jurisdiction. But the Legislature has expressly prohibited, by S. 29(2) of the Act, landlords from obtaining possession of any lands otherwise than under an order of the Mamlatdar. The possession of the disputed land was obtained by the appellants in execution of the award of the debt adjustment court, and without an order of the Mamlatdar. The respondent was therefore unlawfully dispossessed of the land, and the Revenue Authorities in refusing to give him assistance illegally refused to exercise jurisdiction vested in them by law. The question being one of jurisdiction, the High Court was, in our view, competent to exercise the powers vested in it by Art. 227.
|
Union of India & Another Vs. S.N. Maity & Another | because the incumbent in the Office of the Lokpal, having functioned as such at least for some time, would have dealt with many matters and, therefore, to maintain the purity of that office, the restrictions imposed under the Act should be maintained. The only other reasonable way, therefore, is to interpret the provisions to the effect that even when such restrictions continue to be operative on abolition of the office, the incumbent in office should be reasonably compensated not for deprivation of the office but for attachment of the restrictions thereafter.10. The learned counsel for the respondents contended that loss of employment in such a situation is only a contingency of service and the right to abolish the post is available with the Government in the same manner as the right to create a post and a person whose post has been abolished should not be entitled to salary. In our view, these arguments have absolutely no relevance to the question which we have examined. The crux of the matter in this case is the effect of the disqualification of not holding any office after ceasing to hold the Office of the Lokpal. He is deprived of all other offices or business interest when he holds the Office of the Lokpal and the office, which he holds, is also denied to him by reason of the repealing Act. If the argument of the learned counsel for the respondents is accepted, it would lead to incongruity and would baffle all logic.11. The learned counsel for the respondents further submitted that the appellant had not presented his case or claimed compensation for loss of future employment but has claimed only the loss for the present tenure and, therefore, we should not grant any relief to him. A writ petition, which is filed under Article 226 of the Constitution, sets out the facts and the claims arising thereto. Maybe, in a given case, the reliefs set forth may not clearly set out the reliefs arising out of the facts and circumstances of the case. However, the courts always have the power to mould the reliefs and grant the same." 23. We repeat at the cost of repetition that we are absolutely conscious in the said case, the situation was different, but the Court moulded the relief and granted the compensation. The Court did not think to go for the alternative i.e. once there is an abolition of post, the restrictions of holding office would not be attracted to him. The Court did not think of the second situation as the result would be incongruous and baffle all logic. We ingeminate that we have referred to that authority only to keep in view, in certain circumstances relating to curtailment of tenure, the Court can mould the relief depending upon the fact situation. In the obtaining factual scenario, the period has been over since last six years. There had been an order of status quo by this Court on 01.11.2006. The 1st respondent has come back to his parent Department and working in the post of Scientist-G. In distinction to the decision in Debesh Chandra Das (supra), the period of tenure is not available which was there in the said case. Similarly, in Ashok Kumar Ratilal Patel (supra), the appellant was not appointed and, therefore, the Court directed the authorities to appoint him as per the orders of appointment. In the present case, we are of the considered view, the appellant should not suffer the loss of salary, but if we direct for his reinstatement as the High Court has done, it will create an anomalous situation. It would be, in our considered view, not apt at this juncture and, therefore, the cause of justice would be best subserved if he is allowed to get the entire salary that was payable to him for the post of CGPDTM for the balance period, that is, five years minus the period he had actually served and drawn salary. The balance amount shall be paid with interest @ 9% p.a. within three months hence. 24. Another aspect that has been highlighted before us by Mr. Gonsalves is that the 1st respondent should be entitled to draw the same salary that he was drawing on the basis of his last pay drawn when he came back to his parent Department. It is an admitted fact that he was drawing a higher scale while holding the post of CGPDTM, but the question is whether the said pay scale should be maintained in the parent department. Mr. Praveen Swarup, learned counsel appearing for the 2nd respondent has commended us to the decision in Union of India & Others V. Bhanwar Lal Mundan [(2013) 12 SCC 433] . In the said case, a deputationist was getting a higher scale of pay in the post while he was holding a particular post as deputationist. After his repatriation to the parent department, on selection to higher post, he was given higher scale of pay as it was fixed keeping in view the pay scale drawn by him while he was working in the ex-cadre post. In that context, this Court opined that such fixation of pay was fully erroneous and, therefore, the authorities were within their domain to rectify it. Mr. Gonsalves, learned senior counsel would submit that here it was as tenure posting and, therefore, he is entitled to get the equivalent pay which he was holding as a tenure-post holder. The said distinction, on a first glance, may look attractive, but on a deeper scrutiny, has to pale into insignificance. Assuming he would have completed the entire tenure of five years, he would have definitely come back to his parent department. There is no rule or regulation that he will get the equivalent pay scale in his parent department. The normal rule relating to pay scale has to apply to avoid any kind of piquant and uncalled for situation. Therefore, the submission does not commend acceptation and accordingly we repel the same. | 1[ds]The High Court did not accept the contention and dismissed the writ petition. It was contended before this Court on behalf of the appellant that the reversion being in the nature of penalty, the procedure under Article 311(2) was required to be followed and as there was gross violation of the same, the order passed by the Government of India could not be sustained. The said submission was countered by the Government of India urging, inter alia, that he was on deputation and the deputation could be terminated at any time; that his order of appointment clearly showed that the appointment was "until further orders"; that he had no right to continue in Government of India if his services were not required and his reversion to his parent State did not amount either to any reduction in rank or a penalty and, therefore, the order was quite legal and justified.The controversy that has emerged in the instant case is to be decided on the touchstone of the aforesaid principles of law. We have already opined that it is not a case of simple transfer. It is not a situation where one can say that it is a transfer on deputation as against an equivalent post from one cadre to another or one department to another. It is not a deputation from a Government Department to a Government Corporation or one Government to the other. There is no cavil over the fact that the post falls in a different category and the 1st respondent had gone through the whole gamut of selection. On a studied scrutiny, the notification of appointment makes it absolutely clear that it is a tenure posting and the fixed tenure is five years unless it is curtailed. But, a pregnant one, this curtailment cannot be done in an arbitrary or capricious manner. There has to have some rationale. Merely because the words until further orders are used, it would not confer allowance on the employer to act with caprice.17. Presently, we shall scrutinise under what circumstances the order of repatriation has been issued.The order is absolutely silent on any aspect. An argument has been advanced by Mr. Gonsalves, learned senior counsel for the 1st respondent that this letter was issued because of some frivolous complaints made against the 1st respondent and also regard being had to his stern and strict dealings by him pertaining to certain aspects. Be that as it may, the letter is absolutely silent and it has curtailed the tenure of posting without any justifiable reason. Regard being had to the nature of appointment, that is, tenure appointment, it really cannot withstand close scrutiny. Therefore, the judgment passed by the High Court lancinating the said order cannot really be found fault with.19. Though we have accepted the reasoning of the High Court for axing the order of repatriation, yet at this distance of time, we find it difficult to give effect to the direction for reinstatement in the post of CGPDTM. The 1st respondent was appointed on 29.7.2003. The period is since long over. The stand of the 2nd respondent is that the 1st respondent, after being relieved, joined in his parent department on 16.11.2004 and has been holding the post of Scientist-G w.e.f. 13.2.2007 and continuing on the same post. It is also the stand of the respondents that a new person has been holding the post.e order is absolutely silent on any aspect. An argument has been advanced by Mr. Gonsalves, learned senior counsel for the 1st respondent that this letter was issued because of some frivolous complaints made against the 1st respondent and also regard being had to his stern and strict dealings by him pertaining to certain aspects. Be that as it may, the letter is absolutely silent and it has curtailed the tenure of posting without any justifiable reason. Regard being had to the nature of appointment, that is, tenure appointment, it really cannot withstand close scrutiny. Therefore, the judgment passed by the High Court lancinating the said order cannot really be found fault with.19. Though we have accepted the reasoning of the High Court for axing the order of repatriation, yet at this distance of time, we find it difficult to give effect to the direction for reinstatement in the post of CGPDTM. The 1st respondent was appointed on 29.7.2003. The period is since long over. The stand of the 2nd respondent is that the 1st respondent, after being relieved, joined in his parent department on 16.11.2004 and has been holding the post of Scientist-G w.e.f. 13.2.2007 and continuing on the same post. It is also the stand of the respondents that a new person has been holding the post.We repeat at the cost of repetition that we are absolutely conscious in the said case, the situation was different, but the Court moulded the relief and granted the compensation. The Court did not think to go for the alternative i.e. once there is an abolition of post, the restrictions of holding office would not be attracted to him. The Court did not think of the second situation as the result would be incongruous and baffle all logic. We ingeminate that we have referred to that authority only to keep in view, in certain circumstances relating to curtailment of tenure, the Court can mould the relief depending upon the fact situation. In the obtaining factual scenario, the period has been over since last six years. There had been an order of status quo by this Court onhis repatriation to the parent department, on selection to higher post, he was given higher scale of pay as it was fixed keeping in view the pay scale drawn by him while he was working in the ex-cadre post. In that context, this Court opined that such fixation of pay was fully erroneous and, therefore, the authorities were within their domain to rectify it. Mr. Gonsalves, learned senior counsel would submit that here it was as tenure posting and, therefore, he is entitled to get the equivalent pay which he was holding as a tenure-post holder. The said distinction, on a first glance, may look attractive, but on a deeper scrutiny, has to pale into insignificance. Assuming he would have completed the entire tenure of five years, he would have definitely come back to his parent department. There is no rule or regulation that he will get the equivalent pay scale in his parent department. The normal rule relating to pay scale has to apply to avoid any kind of piquant and uncalled for situation. Therefore, the submission does not commend acceptation and accordingly we repel the same. | 1 | 5,693 | 1,217 | ### 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:
because the incumbent in the Office of the Lokpal, having functioned as such at least for some time, would have dealt with many matters and, therefore, to maintain the purity of that office, the restrictions imposed under the Act should be maintained. The only other reasonable way, therefore, is to interpret the provisions to the effect that even when such restrictions continue to be operative on abolition of the office, the incumbent in office should be reasonably compensated not for deprivation of the office but for attachment of the restrictions thereafter.10. The learned counsel for the respondents contended that loss of employment in such a situation is only a contingency of service and the right to abolish the post is available with the Government in the same manner as the right to create a post and a person whose post has been abolished should not be entitled to salary. In our view, these arguments have absolutely no relevance to the question which we have examined. The crux of the matter in this case is the effect of the disqualification of not holding any office after ceasing to hold the Office of the Lokpal. He is deprived of all other offices or business interest when he holds the Office of the Lokpal and the office, which he holds, is also denied to him by reason of the repealing Act. If the argument of the learned counsel for the respondents is accepted, it would lead to incongruity and would baffle all logic.11. The learned counsel for the respondents further submitted that the appellant had not presented his case or claimed compensation for loss of future employment but has claimed only the loss for the present tenure and, therefore, we should not grant any relief to him. A writ petition, which is filed under Article 226 of the Constitution, sets out the facts and the claims arising thereto. Maybe, in a given case, the reliefs set forth may not clearly set out the reliefs arising out of the facts and circumstances of the case. However, the courts always have the power to mould the reliefs and grant the same." 23. We repeat at the cost of repetition that we are absolutely conscious in the said case, the situation was different, but the Court moulded the relief and granted the compensation. The Court did not think to go for the alternative i.e. once there is an abolition of post, the restrictions of holding office would not be attracted to him. The Court did not think of the second situation as the result would be incongruous and baffle all logic. We ingeminate that we have referred to that authority only to keep in view, in certain circumstances relating to curtailment of tenure, the Court can mould the relief depending upon the fact situation. In the obtaining factual scenario, the period has been over since last six years. There had been an order of status quo by this Court on 01.11.2006. The 1st respondent has come back to his parent Department and working in the post of Scientist-G. In distinction to the decision in Debesh Chandra Das (supra), the period of tenure is not available which was there in the said case. Similarly, in Ashok Kumar Ratilal Patel (supra), the appellant was not appointed and, therefore, the Court directed the authorities to appoint him as per the orders of appointment. In the present case, we are of the considered view, the appellant should not suffer the loss of salary, but if we direct for his reinstatement as the High Court has done, it will create an anomalous situation. It would be, in our considered view, not apt at this juncture and, therefore, the cause of justice would be best subserved if he is allowed to get the entire salary that was payable to him for the post of CGPDTM for the balance period, that is, five years minus the period he had actually served and drawn salary. The balance amount shall be paid with interest @ 9% p.a. within three months hence. 24. Another aspect that has been highlighted before us by Mr. Gonsalves is that the 1st respondent should be entitled to draw the same salary that he was drawing on the basis of his last pay drawn when he came back to his parent Department. It is an admitted fact that he was drawing a higher scale while holding the post of CGPDTM, but the question is whether the said pay scale should be maintained in the parent department. Mr. Praveen Swarup, learned counsel appearing for the 2nd respondent has commended us to the decision in Union of India & Others V. Bhanwar Lal Mundan [(2013) 12 SCC 433] . In the said case, a deputationist was getting a higher scale of pay in the post while he was holding a particular post as deputationist. After his repatriation to the parent department, on selection to higher post, he was given higher scale of pay as it was fixed keeping in view the pay scale drawn by him while he was working in the ex-cadre post. In that context, this Court opined that such fixation of pay was fully erroneous and, therefore, the authorities were within their domain to rectify it. Mr. Gonsalves, learned senior counsel would submit that here it was as tenure posting and, therefore, he is entitled to get the equivalent pay which he was holding as a tenure-post holder. The said distinction, on a first glance, may look attractive, but on a deeper scrutiny, has to pale into insignificance. Assuming he would have completed the entire tenure of five years, he would have definitely come back to his parent department. There is no rule or regulation that he will get the equivalent pay scale in his parent department. The normal rule relating to pay scale has to apply to avoid any kind of piquant and uncalled for situation. Therefore, the submission does not commend acceptation and accordingly we repel the same.
### Response:
1
### Explanation:
that he had no right to continue in Government of India if his services were not required and his reversion to his parent State did not amount either to any reduction in rank or a penalty and, therefore, the order was quite legal and justified.The controversy that has emerged in the instant case is to be decided on the touchstone of the aforesaid principles of law. We have already opined that it is not a case of simple transfer. It is not a situation where one can say that it is a transfer on deputation as against an equivalent post from one cadre to another or one department to another. It is not a deputation from a Government Department to a Government Corporation or one Government to the other. There is no cavil over the fact that the post falls in a different category and the 1st respondent had gone through the whole gamut of selection. On a studied scrutiny, the notification of appointment makes it absolutely clear that it is a tenure posting and the fixed tenure is five years unless it is curtailed. But, a pregnant one, this curtailment cannot be done in an arbitrary or capricious manner. There has to have some rationale. Merely because the words until further orders are used, it would not confer allowance on the employer to act with caprice.17. Presently, we shall scrutinise under what circumstances the order of repatriation has been issued.The order is absolutely silent on any aspect. An argument has been advanced by Mr. Gonsalves, learned senior counsel for the 1st respondent that this letter was issued because of some frivolous complaints made against the 1st respondent and also regard being had to his stern and strict dealings by him pertaining to certain aspects. Be that as it may, the letter is absolutely silent and it has curtailed the tenure of posting without any justifiable reason. Regard being had to the nature of appointment, that is, tenure appointment, it really cannot withstand close scrutiny. Therefore, the judgment passed by the High Court lancinating the said order cannot really be found fault with.19. Though we have accepted the reasoning of the High Court for axing the order of repatriation, yet at this distance of time, we find it difficult to give effect to the direction for reinstatement in the post of CGPDTM. The 1st respondent was appointed on 29.7.2003. The period is since long over. The stand of the 2nd respondent is that the 1st respondent, after being relieved, joined in his parent department on 16.11.2004 and has been holding the post of Scientist-G w.e.f. 13.2.2007 and continuing on the same post. It is also the stand of the respondents that a new person has been holding the post.e order is absolutely silent on any aspect. An argument has been advanced by Mr. Gonsalves, learned senior counsel for the 1st respondent that this letter was issued because of some frivolous complaints made against the 1st respondent and also regard being had to his stern and strict dealings by him pertaining to certain aspects. Be that as it may, the letter is absolutely silent and it has curtailed the tenure of posting without any justifiable reason. Regard being had to the nature of appointment, that is, tenure appointment, it really cannot withstand close scrutiny. Therefore, the judgment passed by the High Court lancinating the said order cannot really be found fault with.19. Though we have accepted the reasoning of the High Court for axing the order of repatriation, yet at this distance of time, we find it difficult to give effect to the direction for reinstatement in the post of CGPDTM. The 1st respondent was appointed on 29.7.2003. The period is since long over. The stand of the 2nd respondent is that the 1st respondent, after being relieved, joined in his parent department on 16.11.2004 and has been holding the post of Scientist-G w.e.f. 13.2.2007 and continuing on the same post. It is also the stand of the respondents that a new person has been holding the post.We repeat at the cost of repetition that we are absolutely conscious in the said case, the situation was different, but the Court moulded the relief and granted the compensation. The Court did not think to go for the alternative i.e. once there is an abolition of post, the restrictions of holding office would not be attracted to him. The Court did not think of the second situation as the result would be incongruous and baffle all logic. We ingeminate that we have referred to that authority only to keep in view, in certain circumstances relating to curtailment of tenure, the Court can mould the relief depending upon the fact situation. In the obtaining factual scenario, the period has been over since last six years. There had been an order of status quo by this Court onhis repatriation to the parent department, on selection to higher post, he was given higher scale of pay as it was fixed keeping in view the pay scale drawn by him while he was working in the ex-cadre post. In that context, this Court opined that such fixation of pay was fully erroneous and, therefore, the authorities were within their domain to rectify it. Mr. Gonsalves, learned senior counsel would submit that here it was as tenure posting and, therefore, he is entitled to get the equivalent pay which he was holding as a tenure-post holder. The said distinction, on a first glance, may look attractive, but on a deeper scrutiny, has to pale into insignificance. Assuming he would have completed the entire tenure of five years, he would have definitely come back to his parent department. There is no rule or regulation that he will get the equivalent pay scale in his parent department. The normal rule relating to pay scale has to apply to avoid any kind of piquant and uncalled for situation. Therefore, the submission does not commend acceptation and accordingly we repel the same.
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Managing Director, Uttar Pradesh Warehousing Corporation Vs. Vijay Narayan Vajpayee | himself and to establish his innocence which means and includes an opportunity to cross-examine the witnesses relied upon by the appellant-Corporation and an opportunity to lead evidence in defence of the charge as also a show-cause notice for the proposed punishment. Such an opportunity was denied to the respondent in the instant case. Admittedly, the respondent was not allowed to lead evidence in defence. Further, he was not allowed to cross-examine certain persons whose statements were not recorded by the Enquiry Officer (Opposite Party No. 1) in the presence of the respondent. There was controversy on this point. But it was clear to the High Court from the report of enquiry by the Opposite Party No. 1 that he relied upon the reports of some persons and the statements of some other persons who were not examined by him. A regular departmental enquiry takes place only after the charge-sheet is drawn up and served upon the delinquent and the latters explanation is obtained. In the present case, no such enquiry was held and the order of dismissal was passed summarily after perusing the respondents explanation. The rules of natural justice in this case, were honoured in total breach. The impugned order of dismissal was thus bad in law and had been rightly set aside by the High Court.Before passing on to the next question we may in fairness mention, that Mr. Asok Sen had cited two more decisions, also. The first was a recent judgment of the House of Lords in Melloch. v. Aberdeen Corporation(1), wherein Lord Wilberforce in his speech (at pages 1595-1596 of the Report) observed that in cases in which there is an element of public employment or service, or support by statute or some thing in the nature of an office or a status, which is capable of protection, then irrespective of the terminology used, and even though in some inter parties aspects the relationship may be called that of master and servant, there may be essential procedural requirement to be observed on grounds of natural justice. The second decision is Ramana Dayaram Shetty v. The International Airport Authority of India &Ors.(1)8. In Ramana Dayaram Shettys case (ibid) Bhagwati, J. after mak ing an exhaustive survey of the decisions of this Court and of American Courts, summarised some of the factors which are considered to determine whether a Corporation is an agency or instrumentality of Government. We do not think it necessary to burden this judgment by a detailed discussion of these cases because in the instant case, all the material factors exist which show beyond doubt that the Uttar Pradesh State Warehousing Corporation constituted under the Central Act 28 of 1956, is an agency or instrumentality of the Government, and the relationship between the Corporation and its employees is not purely that of master and servant, founded only on contract. Indeed, it was not seriously disputed that the respondent was in public employment, and the Corporation is an authority within the meaning of Article 12 of the Constitution.9. Further contention of the learned counsel for the appellants is that even if the dismissal of the respondent was wrongful, the High Court could only quash the same, but it could not in the exercise of its certiorari jurisdiction under Article 226 of the Constitution give the further direction that the employee should be reinstated in service with full back wages. It is maintained that in giving this further direction, the High Court had overleaped the bounds of its jurisdiction.There appears to be force in this contention. It must be remembered that in the exercise of its certiorari jurisdiction under Article 226 of the Constitution, the High Court acts only in a supervisory capacity and not as an appellate tribunal. It does not review the evidence upon which the inferior tribunal proposed to base its conclusion; it simply demolishes the order which it considers to be without jurisdiction or manifestly erroneous, but does not, as a rule, substitute its own view for those of the inferior tribunal. In other words, the offending order or the impugned illegal proceeding is quashed and put out of the way as one which should not be used to the detriment of the writ petitioner. Thus in matters of employment, while exercising its supervisory jurisdiction under Article 226 of the Constitution, over the order and quasi-judicial proceeding of an administrative authority-not being a proceeding under the industrial law/labour law before an industrial/labour tribunal-culminating in dismissal of the employee, the High Court should ordinarily. in the event of t he dismissal being found illegal, simply quash the same and should not further give a positive direction for payment to the employee full back wages (although as consequence of the annulment of the dismissal, the position as it obtained immediately before the dismissal is restored), such peculiar powers can properly be exercised in a case where the impugned adjudication or award has been given by an Industrial Tribunal or Labour Court. The instant case is not one under Industrial/Labour Law. The respondent employee never raised any industrial dispute, nor invoked the jurisdiction of the Labour Court or the Industrial Tribunal. He directly moved the High Court for the exercise of its special jurisdiction under Article 22 6 of the Constitution for challenging the order of dismissal primarily on the ground that it was violative of the principles of natural justice which required that his public employment should not be terminated without giving him a due opportunity to defend himself and to rebut the charges against him. Furthermore, whether a workman or employee of a statutory authority should be reinstated in public employment with or without full back wages, is a question of fact depending on evidence to be produced before the tribunal. If after the termination of his employment the workman/employee was gainfully employed elsewhere, that is one of the important factors to be considered in determining whether or not the rein statement should be with full back wages and with continuity of employment. | 0[ds]The appellant is a Corporation constituted under the Uttar Pradesh State Warehousing Corporation (Act 28) of 1956, which was subsequently replaced by the Central Act 58 of 1962. It is a statutory body wholly controlled and man aged by the Government. Its status is analogous to that of the Corporations which were under consideration in Sukhdev Singhs case (ibid). The ratio of Sukhdev Singhs case, therefore, squarely applies to the present case. Even if at the time of the dismissal, the statutory regulations had not been framed or had not come into force, then also the employment of the respondent was public employment and the statutory body, the employer, could not terminate the services of its employee without due enquiry in accordance with the statutory Regulations, if any in force, or in the absence of such Regulations, in accordance with the rules of natural justice. Such an enquiry into the conduct of a public employee is of a quasi-judicial character. The respondent was employed by the appellant-Corporation in exercise of the powers conferred on it by the statute which created it. The appellants power to dismiss the respondent from service was also derived from the statute. The Court would therefore, presume the existence of a duty on the part of the dismissing authority to observe the rules of natural justice, and to act in accordance with the spirit of Regulation 16, which was then on t he anvil and came into force shortly after the impugned dismissal. The rules of natural justice in the circumstances of the case, required that the respondent should be given a reasonable opportunity to deny his guilt, to defend himself and to establish his innocence which means and includes an opportunity to cross-examine the witnesses relied upon by the appellant-Corporation and an opportunity to lead evidence in defence of the charge as also a show-cause notice for the proposed punishment. Such an opportunity was denied to the respondent in the instant case. Admittedly, the respondent was not allowed to lead evidence in defence. Further, he was not allowed to cross-examine certain persons whose statements were not recorded by the Enquiry Officer (Opposite Party No. 1) in the presence of the respondent. There was controversy on this point. But it was clear to the High Court from the report of enquiry by the Opposite Party No. 1 that he relied upon the reports of some persons and the statements of some other persons who were not examined by him. A regular departmental enquiry takes place only after the charge-sheet is drawn up and served upon the delinquent and the latters explanation is obtained. In the present case, no such enquiry was held and the order of dismissal was passed summarily after perusing the respondents explanation. The rules of natural justice in this case, were honoured in total breach. The impugned order of dismissal was thus bad in law and had been rightly set aside by the Highmust be remembered that in the exercise of its certiorari jurisdiction under Article 226 of the Constitution, the High Court acts only in a supervisory capacity and not as an appellate tribunal. It does not review the evidence upon which the inferior tribunal proposed to base its conclusion; it simply demolishes the order which it considers to be without jurisdiction or manifestly erroneous, but does not, as a rule, substitute its own view for those of the inferior tribunal. In other words, the offending order or the impugned illegal proceeding is quashed and put out of the way as one which should not be used to the detriment of the writ petitioner. Thus in matters of employment, while exercising its supervisory jurisdiction under Article 226 of the Constitution, over the order and quasi-judicial proceeding of an administrative authority-not being a proceeding under the industrial law/labour law before an industrial/labour tribunal-culminating in dismissal of the employee, the High Court should ordinarily. in the event of t he dismissal being found illegal, simply quash the same and should not further give a positive direction for payment to the employee full back wages (although as consequence of the annulment of the dismissal, the position as it obtained immediately before the dismissal is restored), such peculiar powers can properly be exercised in a case where the impugned adjudication or award has been given by an Industrial Tribunal or Labour Court. The instant case is not one under Industrial/Labour Law. The respondent employee never raised any industrial dispute, nor invoked the jurisdiction of the Labour Court or the Industrial Tribunal. He directly moved the High Court for the exercise of its special jurisdiction under Article 22 6 of the Constitution for challenging the order of dismissal primarily on the ground that it was violative of the principles of natural justice which required that his public employment should not be terminated without giving him a due opportunity to defend himself and to rebut the charges against him. Furthermore, whether a workman or employee of a statutory authority should be reinstated in public employment with or without full back wages, is a question of fact depending on evidence to be produced before the tribunal. If after the termination of his employment the workman/employee was gainfully employed elsewhere, that is one of the important factors to be considered in determining whether or not the rein statement should be with full back wages and with continuity ofe was dismissed from service. The employer dismissed him, without observing the principles of natural justice. This has been found by the High Court who quashed the order of dismissal in a proceeding under Art. 226 of the Constitution. The employer has appealed. The employer claims that a declaration to enforce a contract of personal service cannot be granted by the Court. The only remedy of the employee, he pleads, is to file a suit for damages for wrongful dismissal. The answer of the employer is that the employer is a statutory Corporation whose employees have statutory status, and that the employer is bound by the regulations made under the statute as also to observe the principles of natural justice. Breach of the regulations or failure to observe the principles of natural justice entitles the employee to invoke the jurisdiction of the High Court under Article 226 of thequestion whether breach of statutory regulations or failures to observe the principles of natural justice by a statutory Corporation will entitle an employee of such Corporation to claim a declaration of continuance in service and the question whether the employee is entitled to the protection of Arts. 14 and 16 against the Corporation were considered at great length in Sukhdev Singh &Ors. v. Bhagatram Sardar Singh Raghuvanshi &Anr.(1) The question as to who may be considered to be agencies or instrumentalities of the Government was also considered, again at some length, by this Court in Rama na Dayaram Shetty v. The International Airport Authority of India &Ors.(2)I find it very hard indeed to discover any distinction, on principle, between a person directly under the employment of the Government and a person under the employment of an agency or instrumentality of the Government or a Corporation, set up under a statute or incorporated but wholly owned by the Government. It is self evident and trite to say that the function of the State has long since ceased to be confined to the preservation of the public peace, the exaction of taxes and the defence of its frontiers. It is now the function of the State to secure `social, economic and political justice, to preserve `liberty of thought, expression, belief, faith and worship, and to ensure `equality of status and of opportunity. That is the proclamation of the people in the preamble to the Constitution. The desire to attain these objectives has necessarily resulted in intense Governmental activity in manifold ways. Legislative and executive activity have reached very far and have touched very many aspects of a citizens life. The Government, directly or through the Corporations, set up by it or owned by it , now owns or manages, a large number of industries and institutions. It is the biggest builder in the country. Mammoth and minor irrigation projects, heavy and light engineering projects, projects of various kinds are undertaken by the Government. The Government is also the biggest trader in the country. The State and the multitudinous agencies and Corporations set up by it are the principal purchasers of the produce and the products of our country and they control a vast and complex machinery of distribution. The Government, its agencies and instrumentalities, Corporations set up by the Government under statutes and Corporations incorporated under the Companies Act but owned by the Government have thus become the biggest employers in the country. There is no good reason why, if Government is bound to observe the equality clauses of the constitution in the matter of employment and in its dealings with the employees, the Corporations set up or owned by the Government should not be equally bound and why, instead, such Corporations could become citadels of patronage and arbitrary action. In a country like ours which teems with population, where the State, its agencies, its instrumentalities and its Corporations are the biggest employers and where millions seek employment and security, to confirm the applicability of the equality clauses of the constitution, in relation to matters of employment, strictly to direct employment under the Government is perhaps to mock at the Constitution and the people. Some element of public employment is all that is necessary to take the employee beyond the reach of the rule which denies him access to a Court so enforce a contract of employment and denies him the protection of Arts. 14 and 16 of the Constitution. After all employment in the public sector has grown to vast dimensions and employees in the public sector often discharge as onerous duties as civil servants and participate in activities vital to our countrys economy. In growing realization of the importance of employment in the public sector, Parliament and the Legislatures of the States have declared persons in the service of local authorities, Government companies and statutory corporations as public servants and, extended to them by express enactment the protection usually extended to civil servants from suits and prosecution. It is, therefore, but right that the independence and integrity of those employed in the public sector should be secured as much as the independence and integrity of civil servants.I agree with what has been said by my brother Sarkaria J. I have added a few lines to emphasise some aspects of the problem. | 0 | 3,623 | 1,925 | ### 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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himself and to establish his innocence which means and includes an opportunity to cross-examine the witnesses relied upon by the appellant-Corporation and an opportunity to lead evidence in defence of the charge as also a show-cause notice for the proposed punishment. Such an opportunity was denied to the respondent in the instant case. Admittedly, the respondent was not allowed to lead evidence in defence. Further, he was not allowed to cross-examine certain persons whose statements were not recorded by the Enquiry Officer (Opposite Party No. 1) in the presence of the respondent. There was controversy on this point. But it was clear to the High Court from the report of enquiry by the Opposite Party No. 1 that he relied upon the reports of some persons and the statements of some other persons who were not examined by him. A regular departmental enquiry takes place only after the charge-sheet is drawn up and served upon the delinquent and the latters explanation is obtained. In the present case, no such enquiry was held and the order of dismissal was passed summarily after perusing the respondents explanation. The rules of natural justice in this case, were honoured in total breach. The impugned order of dismissal was thus bad in law and had been rightly set aside by the High Court.Before passing on to the next question we may in fairness mention, that Mr. Asok Sen had cited two more decisions, also. The first was a recent judgment of the House of Lords in Melloch. v. Aberdeen Corporation(1), wherein Lord Wilberforce in his speech (at pages 1595-1596 of the Report) observed that in cases in which there is an element of public employment or service, or support by statute or some thing in the nature of an office or a status, which is capable of protection, then irrespective of the terminology used, and even though in some inter parties aspects the relationship may be called that of master and servant, there may be essential procedural requirement to be observed on grounds of natural justice. The second decision is Ramana Dayaram Shetty v. The International Airport Authority of India &Ors.(1)8. In Ramana Dayaram Shettys case (ibid) Bhagwati, J. after mak ing an exhaustive survey of the decisions of this Court and of American Courts, summarised some of the factors which are considered to determine whether a Corporation is an agency or instrumentality of Government. We do not think it necessary to burden this judgment by a detailed discussion of these cases because in the instant case, all the material factors exist which show beyond doubt that the Uttar Pradesh State Warehousing Corporation constituted under the Central Act 28 of 1956, is an agency or instrumentality of the Government, and the relationship between the Corporation and its employees is not purely that of master and servant, founded only on contract. Indeed, it was not seriously disputed that the respondent was in public employment, and the Corporation is an authority within the meaning of Article 12 of the Constitution.9. Further contention of the learned counsel for the appellants is that even if the dismissal of the respondent was wrongful, the High Court could only quash the same, but it could not in the exercise of its certiorari jurisdiction under Article 226 of the Constitution give the further direction that the employee should be reinstated in service with full back wages. It is maintained that in giving this further direction, the High Court had overleaped the bounds of its jurisdiction.There appears to be force in this contention. It must be remembered that in the exercise of its certiorari jurisdiction under Article 226 of the Constitution, the High Court acts only in a supervisory capacity and not as an appellate tribunal. It does not review the evidence upon which the inferior tribunal proposed to base its conclusion; it simply demolishes the order which it considers to be without jurisdiction or manifestly erroneous, but does not, as a rule, substitute its own view for those of the inferior tribunal. In other words, the offending order or the impugned illegal proceeding is quashed and put out of the way as one which should not be used to the detriment of the writ petitioner. Thus in matters of employment, while exercising its supervisory jurisdiction under Article 226 of the Constitution, over the order and quasi-judicial proceeding of an administrative authority-not being a proceeding under the industrial law/labour law before an industrial/labour tribunal-culminating in dismissal of the employee, the High Court should ordinarily. in the event of t he dismissal being found illegal, simply quash the same and should not further give a positive direction for payment to the employee full back wages (although as consequence of the annulment of the dismissal, the position as it obtained immediately before the dismissal is restored), such peculiar powers can properly be exercised in a case where the impugned adjudication or award has been given by an Industrial Tribunal or Labour Court. The instant case is not one under Industrial/Labour Law. The respondent employee never raised any industrial dispute, nor invoked the jurisdiction of the Labour Court or the Industrial Tribunal. He directly moved the High Court for the exercise of its special jurisdiction under Article 22 6 of the Constitution for challenging the order of dismissal primarily on the ground that it was violative of the principles of natural justice which required that his public employment should not be terminated without giving him a due opportunity to defend himself and to rebut the charges against him. Furthermore, whether a workman or employee of a statutory authority should be reinstated in public employment with or without full back wages, is a question of fact depending on evidence to be produced before the tribunal. If after the termination of his employment the workman/employee was gainfully employed elsewhere, that is one of the important factors to be considered in determining whether or not the rein statement should be with full back wages and with continuity of employment.
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### Explanation:
special jurisdiction under Article 22 6 of the Constitution for challenging the order of dismissal primarily on the ground that it was violative of the principles of natural justice which required that his public employment should not be terminated without giving him a due opportunity to defend himself and to rebut the charges against him. Furthermore, whether a workman or employee of a statutory authority should be reinstated in public employment with or without full back wages, is a question of fact depending on evidence to be produced before the tribunal. If after the termination of his employment the workman/employee was gainfully employed elsewhere, that is one of the important factors to be considered in determining whether or not the rein statement should be with full back wages and with continuity ofe was dismissed from service. The employer dismissed him, without observing the principles of natural justice. This has been found by the High Court who quashed the order of dismissal in a proceeding under Art. 226 of the Constitution. The employer has appealed. The employer claims that a declaration to enforce a contract of personal service cannot be granted by the Court. The only remedy of the employee, he pleads, is to file a suit for damages for wrongful dismissal. The answer of the employer is that the employer is a statutory Corporation whose employees have statutory status, and that the employer is bound by the regulations made under the statute as also to observe the principles of natural justice. Breach of the regulations or failure to observe the principles of natural justice entitles the employee to invoke the jurisdiction of the High Court under Article 226 of thequestion whether breach of statutory regulations or failures to observe the principles of natural justice by a statutory Corporation will entitle an employee of such Corporation to claim a declaration of continuance in service and the question whether the employee is entitled to the protection of Arts. 14 and 16 against the Corporation were considered at great length in Sukhdev Singh &Ors. v. Bhagatram Sardar Singh Raghuvanshi &Anr.(1) The question as to who may be considered to be agencies or instrumentalities of the Government was also considered, again at some length, by this Court in Rama na Dayaram Shetty v. The International Airport Authority of India &Ors.(2)I find it very hard indeed to discover any distinction, on principle, between a person directly under the employment of the Government and a person under the employment of an agency or instrumentality of the Government or a Corporation, set up under a statute or incorporated but wholly owned by the Government. It is self evident and trite to say that the function of the State has long since ceased to be confined to the preservation of the public peace, the exaction of taxes and the defence of its frontiers. It is now the function of the State to secure `social, economic and political justice, to preserve `liberty of thought, expression, belief, faith and worship, and to ensure `equality of status and of opportunity. That is the proclamation of the people in the preamble to the Constitution. The desire to attain these objectives has necessarily resulted in intense Governmental activity in manifold ways. Legislative and executive activity have reached very far and have touched very many aspects of a citizens life. The Government, directly or through the Corporations, set up by it or owned by it , now owns or manages, a large number of industries and institutions. It is the biggest builder in the country. Mammoth and minor irrigation projects, heavy and light engineering projects, projects of various kinds are undertaken by the Government. The Government is also the biggest trader in the country. The State and the multitudinous agencies and Corporations set up by it are the principal purchasers of the produce and the products of our country and they control a vast and complex machinery of distribution. The Government, its agencies and instrumentalities, Corporations set up by the Government under statutes and Corporations incorporated under the Companies Act but owned by the Government have thus become the biggest employers in the country. There is no good reason why, if Government is bound to observe the equality clauses of the constitution in the matter of employment and in its dealings with the employees, the Corporations set up or owned by the Government should not be equally bound and why, instead, such Corporations could become citadels of patronage and arbitrary action. In a country like ours which teems with population, where the State, its agencies, its instrumentalities and its Corporations are the biggest employers and where millions seek employment and security, to confirm the applicability of the equality clauses of the constitution, in relation to matters of employment, strictly to direct employment under the Government is perhaps to mock at the Constitution and the people. Some element of public employment is all that is necessary to take the employee beyond the reach of the rule which denies him access to a Court so enforce a contract of employment and denies him the protection of Arts. 14 and 16 of the Constitution. After all employment in the public sector has grown to vast dimensions and employees in the public sector often discharge as onerous duties as civil servants and participate in activities vital to our countrys economy. In growing realization of the importance of employment in the public sector, Parliament and the Legislatures of the States have declared persons in the service of local authorities, Government companies and statutory corporations as public servants and, extended to them by express enactment the protection usually extended to civil servants from suits and prosecution. It is, therefore, but right that the independence and integrity of those employed in the public sector should be secured as much as the independence and integrity of civil servants.I agree with what has been said by my brother Sarkaria J. I have added a few lines to emphasise some aspects of the problem.
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Mansoor Khan & Others Vs. State of Uttar Pradesh & Others | are mentioning below only the relevant ones:(1) That proceedings under the Avas Evam Vikas Adhiniyam sanctioning the "Kairaili Bhoomi Vikas Yojua, Allahabad" are ultra vires as no previous permission was obtained to the said scheme under the mandatory ,provisions of Section 6 of the U. P. (Regulation of Building Operations) Act, 1958 before undertaking the same, as the status of the U. P. Avas Evam Vikas Parishad is nothing more than that of person being a body corporate as laid down in Section 3 (ii) of the U. P. Avas Evam Vikas Parishad Adhiniyam 1965 (U. P. Act No. 1 of 1966).(2) That the scheme was not sanctioned within six months from the date of the receipt of objections.(3) That there was no urgency for applying Section 17 (1) of the Land Acquisition Act, 1894, even before the representation under Section 49 of the U. P. Avas Evam Vikas Adhiniyam had been considered.Though as many as 11 grounds have been raised in the petition before the High Court and 8 in petition of appeal in this Court, as we consider the rest of the points as wholly without substance it is unnecessary to refer to them.Point 13. Under Section 6 of the U. P. (Regulation of Building Operations) Act, l958, no person shall undertake or carry out the development of any site in any regulated area or erect, re-erect or make any material change in any building or snake or extend any excavation or lay out any means of access to a road in such area except in accordance with the directions, if any, issued under this Act and with previous permission of the prescribed Authority in writing. It is admitted that the area proposed to be acquired is a regulated area.We do not see any substance in the contention that as no sanction under this section had been taken the acquisition proceedings are ultra vires. This section is intended to prevent haphazard development of regulated areas and cannot apply where a Board like the U. P. Avas Evam Vikas Parishad frames schemes for the express purpose of regulated development. The acts mentioned in that section have not yet even begun and even if they are so begun there may be room for objecting to those acts without complying with its provisions but it cannot have any relevance to the proceedings for acquiring land for a scheme which may perhaps in due course lead to such acts being done. It is at that stage, if at all, that that section ought to be relied upon if it is contravened.4. Furthermore, the Act is a self-contained Act with all the necessary provisions. Indeed where it considers necessary it has even amended earlier Acts as is seen from S. 55which mentions the amendments to which the Land Acquisition Act, 1894 shall be subject in so far as it applies to the acquisition of land for the purposes of the Act. If the intention were that the framing of any scheme was to be subject to the provisions of Section 6 of the U. P. (Regulation of Building Operations) Act, 1958, the Act would have specifically said so.In the absence of any such provision, provisions of Uttar Pradesh Act 1 of 1966 would have to be given full effect to. Moreover, this is a special Act whose provisions will take effect in preference to the provisions of a general Act like the U. P. (Regulation of Building Operations) Act of l958. We hold that there is no substance in this contention.Point 25. The fact that the scheme was not sanctioned within six months from the date of inviting objections cannot make the scheme illegal or ultra vires. Even S. 31 merely provides that "the Board may, so far as may be, within six months........ sanction it ". So the period of six months within which the scheme has to be sanctioned is not an absolute limit. The provision regarding the scheme being sanctioned within six months is purely directory and not mandatory. The scheme is, therefore, valid.Point 36. The provisions of S. 17 (1) of the Land Acquisition Act, 1894 leave it absolutely to the discretion of the appropriate government in cases of urgency to direct the Collector to take possession of any waste or arable land needed for public purposes even though no award has " been made. There is no dispute that these lands are arable lands. So, the question whether there is urgency or not is left to the discretion and decision of the appropriate government. Under subsection (4) of that section in the case of any land to which, in the opinion of the appropriate Government the provisions of sub-section (1) or subsection (2) are applicable, the appropriate Government may direct that the provisions of Section 5A shall not apply) One of the modifications to the Land Acquisition Act, 1894 made by S. 55 of the U. P. Act l of 1966 is that the provisions of Section 5A of the Land Acquisition Act, 1894, shall be inapplicable in relation to any land proposed to be acquired under any housing or improvement scheme notified in the Official Gazette under Section 28 or under clause (a) of sub-section (3) of Section 31.It is, therefore, obvious that the Legislature has specifically applied its mind to the question whether an inquiry under S. 5A of the Land Acquisition Act was necessary and dispensed with it in the case of schemes undertaken under the provisions of that Act. We do not see what relevance the power of the State Government under S. 49 of the Act to call for and examine the records of the Board relating to any housing or improvement scheme and modify, annul or remitting for re-consideration has to the power to take possession of the land under provisions of S. 17 (1) of the Land Acquisition Act. 1894. Furthermore, this scheme being sanctioned by the Government itself there is no room for exercise of the powers under S. 49. | 0[ds]It is admitted that the area proposed to be acquired is a regulated area.We do not see any substance in the contention that as no sanction under this section had been taken the acquisition proceedings are ultra vires. This section is intended to prevent haphazard development of regulated areas and cannot apply where a Board like the U. P. Avas Evam Vikas Parishad frames schemes for the express purpose of regulated development. The acts mentioned in that section have not yet even begun and even if they are so begun there may be room for objecting to those acts without complying with its provisions but it cannot have any relevance to the proceedings for acquiring land for a scheme which may perhaps in due course lead to such acts being done. It is at that stage, if at all, that that section ought to be relied upon if it is contravened.4. Furthermore, the Act is aAct with all the necessary provisions. Indeed where it considers necessary it has even amended earlier Acts as is seen from S. 55which mentions the amendments to which the Land Acquisition Act, 1894 shall be subject in so far as it applies to the acquisition of land for the purposes of the Act. If the intention were that the framing of any scheme was to be subject to the provisions of Section 6 of the U. P. (Regulation of Building Operations) Act, 1958, the Act would have specifically said so.In the absence of any such provision, provisions of Uttar Pradesh Act 1 of 1966 would have to be given full effect to. Moreover, this is a special Act whose provisions will take effect in preference to the provisions of a general Act like the U. P. (Regulation of Building Operations) Act of l958. We hold that there is no substance in this contention.The fact that the scheme was not sanctioned within six months from the date of inviting objections cannot make the scheme illegal or ultra vires. Even S. 31 merely provides that "the Board may, so far as may be, within six months........ sanction it ". So the period of six months within which the scheme has to be sanctioned is not an absolute limit. The provision regarding the scheme being sanctioned within six months is purely directory and not mandatory. The scheme is, therefore, valid.The provisions of S. 17 (1) of the Land Acquisition Act, 1894 leave it absolutely to the discretion of the appropriate government in cases of urgency to direct the Collector to take possession of any waste or arable land needed for public purposes even though no award has " been made. There is no dispute that these lands are arable lands. So, the question whether there is urgency or not is left to the discretion and decision of the appropriate government. Under subsection (4) of that section in the case of any land to which, in the opinion of the appropriate Government the provisions of(1) or subsection (2) are applicable, the appropriate Government may direct that the provisions of Section 5A shall not apply) One of the modifications to the Land Acquisition Act, 1894 made by S. 55 of the U. P. Act l of 1966 is that the provisions of Section 5A of the Land Acquisition Act, 1894, shall be inapplicable in relation to any land proposed to be acquired under any housing or improvement scheme notified in the Official Gazette under Section 28 or under clause (a) of(3) of Section 31.It is, therefore, obvious that the Legislature has specifically applied its mind to the question whether an inquiry under S. 5A of the Land Acquisition Act was necessary and dispensed with it in the case of schemes undertaken under the provisions of that Act. We do not see what relevance the power of the State Government under S. 49 of the Act to call for and examine the records of the Board relating to any housing or improvement scheme and modify, annul or remitting forhas to the power to take possession of the land under provisions of S. 17 (1) of the Land Acquisition Act. 1894. Furthermore, this scheme being sanctioned by the Government itself there is no room for exercise of the powers under S. 49. | 0 | 1,620 | 782 | ### 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:
are mentioning below only the relevant ones:(1) That proceedings under the Avas Evam Vikas Adhiniyam sanctioning the "Kairaili Bhoomi Vikas Yojua, Allahabad" are ultra vires as no previous permission was obtained to the said scheme under the mandatory ,provisions of Section 6 of the U. P. (Regulation of Building Operations) Act, 1958 before undertaking the same, as the status of the U. P. Avas Evam Vikas Parishad is nothing more than that of person being a body corporate as laid down in Section 3 (ii) of the U. P. Avas Evam Vikas Parishad Adhiniyam 1965 (U. P. Act No. 1 of 1966).(2) That the scheme was not sanctioned within six months from the date of the receipt of objections.(3) That there was no urgency for applying Section 17 (1) of the Land Acquisition Act, 1894, even before the representation under Section 49 of the U. P. Avas Evam Vikas Adhiniyam had been considered.Though as many as 11 grounds have been raised in the petition before the High Court and 8 in petition of appeal in this Court, as we consider the rest of the points as wholly without substance it is unnecessary to refer to them.Point 13. Under Section 6 of the U. P. (Regulation of Building Operations) Act, l958, no person shall undertake or carry out the development of any site in any regulated area or erect, re-erect or make any material change in any building or snake or extend any excavation or lay out any means of access to a road in such area except in accordance with the directions, if any, issued under this Act and with previous permission of the prescribed Authority in writing. It is admitted that the area proposed to be acquired is a regulated area.We do not see any substance in the contention that as no sanction under this section had been taken the acquisition proceedings are ultra vires. This section is intended to prevent haphazard development of regulated areas and cannot apply where a Board like the U. P. Avas Evam Vikas Parishad frames schemes for the express purpose of regulated development. The acts mentioned in that section have not yet even begun and even if they are so begun there may be room for objecting to those acts without complying with its provisions but it cannot have any relevance to the proceedings for acquiring land for a scheme which may perhaps in due course lead to such acts being done. It is at that stage, if at all, that that section ought to be relied upon if it is contravened.4. Furthermore, the Act is a self-contained Act with all the necessary provisions. Indeed where it considers necessary it has even amended earlier Acts as is seen from S. 55which mentions the amendments to which the Land Acquisition Act, 1894 shall be subject in so far as it applies to the acquisition of land for the purposes of the Act. If the intention were that the framing of any scheme was to be subject to the provisions of Section 6 of the U. P. (Regulation of Building Operations) Act, 1958, the Act would have specifically said so.In the absence of any such provision, provisions of Uttar Pradesh Act 1 of 1966 would have to be given full effect to. Moreover, this is a special Act whose provisions will take effect in preference to the provisions of a general Act like the U. P. (Regulation of Building Operations) Act of l958. We hold that there is no substance in this contention.Point 25. The fact that the scheme was not sanctioned within six months from the date of inviting objections cannot make the scheme illegal or ultra vires. Even S. 31 merely provides that "the Board may, so far as may be, within six months........ sanction it ". So the period of six months within which the scheme has to be sanctioned is not an absolute limit. The provision regarding the scheme being sanctioned within six months is purely directory and not mandatory. The scheme is, therefore, valid.Point 36. The provisions of S. 17 (1) of the Land Acquisition Act, 1894 leave it absolutely to the discretion of the appropriate government in cases of urgency to direct the Collector to take possession of any waste or arable land needed for public purposes even though no award has " been made. There is no dispute that these lands are arable lands. So, the question whether there is urgency or not is left to the discretion and decision of the appropriate government. Under subsection (4) of that section in the case of any land to which, in the opinion of the appropriate Government the provisions of sub-section (1) or subsection (2) are applicable, the appropriate Government may direct that the provisions of Section 5A shall not apply) One of the modifications to the Land Acquisition Act, 1894 made by S. 55 of the U. P. Act l of 1966 is that the provisions of Section 5A of the Land Acquisition Act, 1894, shall be inapplicable in relation to any land proposed to be acquired under any housing or improvement scheme notified in the Official Gazette under Section 28 or under clause (a) of sub-section (3) of Section 31.It is, therefore, obvious that the Legislature has specifically applied its mind to the question whether an inquiry under S. 5A of the Land Acquisition Act was necessary and dispensed with it in the case of schemes undertaken under the provisions of that Act. We do not see what relevance the power of the State Government under S. 49 of the Act to call for and examine the records of the Board relating to any housing or improvement scheme and modify, annul or remitting for re-consideration has to the power to take possession of the land under provisions of S. 17 (1) of the Land Acquisition Act. 1894. Furthermore, this scheme being sanctioned by the Government itself there is no room for exercise of the powers under S. 49.
### Response:
0
### Explanation:
It is admitted that the area proposed to be acquired is a regulated area.We do not see any substance in the contention that as no sanction under this section had been taken the acquisition proceedings are ultra vires. This section is intended to prevent haphazard development of regulated areas and cannot apply where a Board like the U. P. Avas Evam Vikas Parishad frames schemes for the express purpose of regulated development. The acts mentioned in that section have not yet even begun and even if they are so begun there may be room for objecting to those acts without complying with its provisions but it cannot have any relevance to the proceedings for acquiring land for a scheme which may perhaps in due course lead to such acts being done. It is at that stage, if at all, that that section ought to be relied upon if it is contravened.4. Furthermore, the Act is aAct with all the necessary provisions. Indeed where it considers necessary it has even amended earlier Acts as is seen from S. 55which mentions the amendments to which the Land Acquisition Act, 1894 shall be subject in so far as it applies to the acquisition of land for the purposes of the Act. If the intention were that the framing of any scheme was to be subject to the provisions of Section 6 of the U. P. (Regulation of Building Operations) Act, 1958, the Act would have specifically said so.In the absence of any such provision, provisions of Uttar Pradesh Act 1 of 1966 would have to be given full effect to. Moreover, this is a special Act whose provisions will take effect in preference to the provisions of a general Act like the U. P. (Regulation of Building Operations) Act of l958. We hold that there is no substance in this contention.The fact that the scheme was not sanctioned within six months from the date of inviting objections cannot make the scheme illegal or ultra vires. Even S. 31 merely provides that "the Board may, so far as may be, within six months........ sanction it ". So the period of six months within which the scheme has to be sanctioned is not an absolute limit. The provision regarding the scheme being sanctioned within six months is purely directory and not mandatory. The scheme is, therefore, valid.The provisions of S. 17 (1) of the Land Acquisition Act, 1894 leave it absolutely to the discretion of the appropriate government in cases of urgency to direct the Collector to take possession of any waste or arable land needed for public purposes even though no award has " been made. There is no dispute that these lands are arable lands. So, the question whether there is urgency or not is left to the discretion and decision of the appropriate government. Under subsection (4) of that section in the case of any land to which, in the opinion of the appropriate Government the provisions of(1) or subsection (2) are applicable, the appropriate Government may direct that the provisions of Section 5A shall not apply) One of the modifications to the Land Acquisition Act, 1894 made by S. 55 of the U. P. Act l of 1966 is that the provisions of Section 5A of the Land Acquisition Act, 1894, shall be inapplicable in relation to any land proposed to be acquired under any housing or improvement scheme notified in the Official Gazette under Section 28 or under clause (a) of(3) of Section 31.It is, therefore, obvious that the Legislature has specifically applied its mind to the question whether an inquiry under S. 5A of the Land Acquisition Act was necessary and dispensed with it in the case of schemes undertaken under the provisions of that Act. We do not see what relevance the power of the State Government under S. 49 of the Act to call for and examine the records of the Board relating to any housing or improvement scheme and modify, annul or remitting forhas to the power to take possession of the land under provisions of S. 17 (1) of the Land Acquisition Act. 1894. Furthermore, this scheme being sanctioned by the Government itself there is no room for exercise of the powers under S. 49.
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Union of India and Others Etc Vs. Chowgule and Company Private Limited Etc | had on the relevant provisions of the concerned Taxation Act of Orissa. The exercise of interpretation and the principal of incorporation, took out dumpers from the purview of taxation because of their sole user upon the premises of the owner; but otherwise they were held registerable under the Act. This position was altered by the amendment aforementioned and thenceforth dumpers were not only registerable under the Act but taxable as well under the concerned Taxation Act of Orissa. Now here the learned Judicial Commissioner has applied the ratio of Bolani Ores case as emerging and valid for the pre-amendment period. In that period, undeniably a `motor vehicle, though registerable, ceased to be taxable if it was "used solely upon the premises of the owner". That period is not involved here. In the Central Coal Fields case it has been viewed that tax is attracted on the motor vehicle adapted for user of the road, not only for actually using it but for keeping it for use over it, unless it is a vehicle of a special type adapted for use only in a factory or in any other enclosed premises. The respondents claim that their premises are enclosed may not be disputed, but the question still remains whether their vehicles are of a special type adapted for use only in a factory or in any other enclosed premises. No type, much less special, stands pleaded by the respondents-writ- petitioners. The obligation under Section 4 of the Taxation Act in hand subsists, in the absence of such pleading. Tax is to be paid thereunder for "keeping for use a motor vehicle", be one the owner thereof or not. It is the keeping of the motor vehicle for use which attracts taxation. Keeping the motor vehicle for use in the context is for us e on public roads of the State. This court in Central Coal Fields Ltd. case observed in the context as follows:"The very nature of these vehicles make it clear that they are not manufactured or adapted for use only in factories or enclosed premises. The mere fact that the Dumpers or Rockers as suggested are heavy and cannot move on the roads without damaging them is not to say that they are not suitable for use on roads. The word `adapted in the provision was read as `suitable in Bolani Ores case by interpretation on the strength of the language in Entry 57, List-II of the Constitution. Thus on that basis it was idle to contend on behalf of the appellants that Dumpers and Rockers were neither adaptable nor suitable for use on public roads. 7. Thus on the fact situation, we have no hesitation in holding that the High Court was right in concluding that Dumpers and Rockers are vehicles adapted or suitable for use on roads and being motor vehicles per se, as held in Bolani Ores case, were liable to taxation on the footing of their use or kept for use on public roads; the network of which, the State spreads, maintains it and keeps available for use of motor vehicles and hence entitled to a regulatory and compensatory tax. (Exemptions claimable apart). 8. The view of the learned Judicial Commissioner that when dumpers were being used solely on the premises of the owner, and must therefore be excluded from taxation, militates against the views expressed in the aforesaid two cases of this Court. The mere fact that dumpers were used solely on the premises of the owner, or that they were in closed premises, or permission of the Authorities was needed to move them from one place to another, or that they are not intended to be used or are incapable of being used for general purposes, or that they have an unladen and laden capacity depending on their weight and size, is of no consequence for dumpers are vehicles used for transport of goods and thus liable to pay a compensatory tax for the availability of roads for them to run upon commission.Thus for the aforesaid reasons, we allow appeals Nos. 2980, 2981 &2983 of 1981 and set aside the judgment and orders of the Judicial Commissioner, Goa, Daman and Diu in Writ Petition No. 2/69, 12/69 and 48/70 holding the impugned orders and notices issued by the appellants-officers to the respondent writ petitioners as valid and enforceable in accordance with law. 9. So far as the case of shovels is concerned, there is no definite material on the pleadings of the parties to conclude that besides their weight and size, what is their overhang and what is the nature of its wheels, by means of which it would transport goods or passengers so as to attract liability of taxation. We are mindful of the fact that in Bolani Ores Ltd. case shovels therein were noticed to be crawler types of machines. This implies that they were not machines r unning on pnuematic wheels or rubber tyres. They were taken in that case to be not adapted for use on roads and hence not registerable. On both particulars i.e . whether the shovels of the writ petitioner are adaptable for use on roads and hence registerable and whether they are meant to transport goods or passangers and hence taxable, the pleadings are insufficient for us to pronounce upon . When the view of the learned Judicial Commissioner in treating dumpers and shovels at par, has been upset in-so-far as dumpers are concerned, it is prudent that his view about shovels also is upset and the matter in Writ Petition No. 47/70 [ Civil Appeal No. 2982 of 1981] remitted back for reconsideration by the Panaji Bench of the High Court of Bombay. The High Court may in that event permit the parties to amend their pleadings and bring forth material to establish what exactly is the nature and function of a shovel and whether it is registerable under the Motor Vehicles Act and if so whether it is taxable under the Taxation Act. | 1[ds]The view of the learned Judicial Commissioner that when dumpers were being used solely on the premises of the owner, and must therefore be excluded from taxation, militates against the views expressed in the aforesaid two cases of this Court. The mere fact that dumpers were used solely on the premises of the owner, or that they were in closed premises, or permission of the Authorities was needed to move them from one place to another, or that they are not intended to be used or are incapable of being used for general purposes, or that they have an unladen and laden capacity depending on their weight and size, is of no consequence for dumpers are vehicles used for transport of goods and thus liable to pay a compensatory tax for the availability of roads for them to run upon commission.Thus for the aforesaid reasons, we allow appeals Nos. 2980, 2981 &2983 of 1981 and set aside the judgment and orders of the Judicial Commissioner, Goa, Daman and Diu in Writ Petition No. 2/69, 12/69 and 48/70 holding the impugned orders and notices issued by the appellants-officers to the respondent writ petitioners as valid and enforceable in accordance withfar as the case of shovels is concerned, there is no definite material on the pleadings of the parties to conclude that besides their weight and size, what is their overhang and what is the nature of its wheels, by means of which it would transport goods or passengers so as to attract liability of taxation. We are mindful of the fact that in Bolani Ores Ltd. case shovels therein were noticed to be crawler types of machines. This implies that they were not machines r unning on pnuematic wheels or rubber tyres. They were taken in that case to be not adapted for use on roads and hence not registerable. On both particulars i.e . whether the shovels of the writ petitioner are adaptable for use on roads and hence registerable and whether they are meant to transport goods or passangers and hence taxable, the pleadings are insufficient for us to pronounce upon . When the view of the learned Judicial Commissioner in treating dumpers and shovels at par, has been upset in-so-far as dumpers are concerned, it is prudent that his view about shovels also is upset and the matter in Writ Petition No. 47/70 [ Civil Appeal No. 2982 of 1981] remitted back for reconsideration by the Panaji Bench of the High Court of Bombay. The High Court may in that event permit the parties to amend their pleadings and bring forth material to establish what exactly is the nature and function of a shovel and whether it is registerable under the Motor Vehicles Act and if so whether it is taxable under the Taxation Act. | 1 | 2,289 | 502 | ### 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:
had on the relevant provisions of the concerned Taxation Act of Orissa. The exercise of interpretation and the principal of incorporation, took out dumpers from the purview of taxation because of their sole user upon the premises of the owner; but otherwise they were held registerable under the Act. This position was altered by the amendment aforementioned and thenceforth dumpers were not only registerable under the Act but taxable as well under the concerned Taxation Act of Orissa. Now here the learned Judicial Commissioner has applied the ratio of Bolani Ores case as emerging and valid for the pre-amendment period. In that period, undeniably a `motor vehicle, though registerable, ceased to be taxable if it was "used solely upon the premises of the owner". That period is not involved here. In the Central Coal Fields case it has been viewed that tax is attracted on the motor vehicle adapted for user of the road, not only for actually using it but for keeping it for use over it, unless it is a vehicle of a special type adapted for use only in a factory or in any other enclosed premises. The respondents claim that their premises are enclosed may not be disputed, but the question still remains whether their vehicles are of a special type adapted for use only in a factory or in any other enclosed premises. No type, much less special, stands pleaded by the respondents-writ- petitioners. The obligation under Section 4 of the Taxation Act in hand subsists, in the absence of such pleading. Tax is to be paid thereunder for "keeping for use a motor vehicle", be one the owner thereof or not. It is the keeping of the motor vehicle for use which attracts taxation. Keeping the motor vehicle for use in the context is for us e on public roads of the State. This court in Central Coal Fields Ltd. case observed in the context as follows:"The very nature of these vehicles make it clear that they are not manufactured or adapted for use only in factories or enclosed premises. The mere fact that the Dumpers or Rockers as suggested are heavy and cannot move on the roads without damaging them is not to say that they are not suitable for use on roads. The word `adapted in the provision was read as `suitable in Bolani Ores case by interpretation on the strength of the language in Entry 57, List-II of the Constitution. Thus on that basis it was idle to contend on behalf of the appellants that Dumpers and Rockers were neither adaptable nor suitable for use on public roads. 7. Thus on the fact situation, we have no hesitation in holding that the High Court was right in concluding that Dumpers and Rockers are vehicles adapted or suitable for use on roads and being motor vehicles per se, as held in Bolani Ores case, were liable to taxation on the footing of their use or kept for use on public roads; the network of which, the State spreads, maintains it and keeps available for use of motor vehicles and hence entitled to a regulatory and compensatory tax. (Exemptions claimable apart). 8. The view of the learned Judicial Commissioner that when dumpers were being used solely on the premises of the owner, and must therefore be excluded from taxation, militates against the views expressed in the aforesaid two cases of this Court. The mere fact that dumpers were used solely on the premises of the owner, or that they were in closed premises, or permission of the Authorities was needed to move them from one place to another, or that they are not intended to be used or are incapable of being used for general purposes, or that they have an unladen and laden capacity depending on their weight and size, is of no consequence for dumpers are vehicles used for transport of goods and thus liable to pay a compensatory tax for the availability of roads for them to run upon commission.Thus for the aforesaid reasons, we allow appeals Nos. 2980, 2981 &2983 of 1981 and set aside the judgment and orders of the Judicial Commissioner, Goa, Daman and Diu in Writ Petition No. 2/69, 12/69 and 48/70 holding the impugned orders and notices issued by the appellants-officers to the respondent writ petitioners as valid and enforceable in accordance with law. 9. So far as the case of shovels is concerned, there is no definite material on the pleadings of the parties to conclude that besides their weight and size, what is their overhang and what is the nature of its wheels, by means of which it would transport goods or passengers so as to attract liability of taxation. We are mindful of the fact that in Bolani Ores Ltd. case shovels therein were noticed to be crawler types of machines. This implies that they were not machines r unning on pnuematic wheels or rubber tyres. They were taken in that case to be not adapted for use on roads and hence not registerable. On both particulars i.e . whether the shovels of the writ petitioner are adaptable for use on roads and hence registerable and whether they are meant to transport goods or passangers and hence taxable, the pleadings are insufficient for us to pronounce upon . When the view of the learned Judicial Commissioner in treating dumpers and shovels at par, has been upset in-so-far as dumpers are concerned, it is prudent that his view about shovels also is upset and the matter in Writ Petition No. 47/70 [ Civil Appeal No. 2982 of 1981] remitted back for reconsideration by the Panaji Bench of the High Court of Bombay. The High Court may in that event permit the parties to amend their pleadings and bring forth material to establish what exactly is the nature and function of a shovel and whether it is registerable under the Motor Vehicles Act and if so whether it is taxable under the Taxation Act.
### Response:
1
### Explanation:
The view of the learned Judicial Commissioner that when dumpers were being used solely on the premises of the owner, and must therefore be excluded from taxation, militates against the views expressed in the aforesaid two cases of this Court. The mere fact that dumpers were used solely on the premises of the owner, or that they were in closed premises, or permission of the Authorities was needed to move them from one place to another, or that they are not intended to be used or are incapable of being used for general purposes, or that they have an unladen and laden capacity depending on their weight and size, is of no consequence for dumpers are vehicles used for transport of goods and thus liable to pay a compensatory tax for the availability of roads for them to run upon commission.Thus for the aforesaid reasons, we allow appeals Nos. 2980, 2981 &2983 of 1981 and set aside the judgment and orders of the Judicial Commissioner, Goa, Daman and Diu in Writ Petition No. 2/69, 12/69 and 48/70 holding the impugned orders and notices issued by the appellants-officers to the respondent writ petitioners as valid and enforceable in accordance withfar as the case of shovels is concerned, there is no definite material on the pleadings of the parties to conclude that besides their weight and size, what is their overhang and what is the nature of its wheels, by means of which it would transport goods or passengers so as to attract liability of taxation. We are mindful of the fact that in Bolani Ores Ltd. case shovels therein were noticed to be crawler types of machines. This implies that they were not machines r unning on pnuematic wheels or rubber tyres. They were taken in that case to be not adapted for use on roads and hence not registerable. On both particulars i.e . whether the shovels of the writ petitioner are adaptable for use on roads and hence registerable and whether they are meant to transport goods or passangers and hence taxable, the pleadings are insufficient for us to pronounce upon . When the view of the learned Judicial Commissioner in treating dumpers and shovels at par, has been upset in-so-far as dumpers are concerned, it is prudent that his view about shovels also is upset and the matter in Writ Petition No. 47/70 [ Civil Appeal No. 2982 of 1981] remitted back for reconsideration by the Panaji Bench of the High Court of Bombay. The High Court may in that event permit the parties to amend their pleadings and bring forth material to establish what exactly is the nature and function of a shovel and whether it is registerable under the Motor Vehicles Act and if so whether it is taxable under the Taxation Act.
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ALAKH ALOK SRIVASTAVA Vs. UNION OF INDIA | for trial, upon receiving a complaint of facts which constitute such offence, or upon a police report of such facts. (2) The Special Public Prosecutor, or as the case may be, the counsel appearing for the Accused shall, while recording the examination-in-chief, cross-examination or re-examination of the child, communicate the questions to be put to the child to the Special Court which shall in turn put those questions to the child. (3) The Special Court may, if it considers necessary, permit frequent breaks for the child during the trial. (4) The Special Court shall create a child-friendly atmosphere by allowing a family member, a guardian, a friend or a relative, in whom the child has trust or confidence, to be present in the court. (5) The Special Court shall ensure that the child is not called repeatedly to testify in the court. (6) The Special Court not permit aggressive questioning or character assassination of the child and ensure that dignity of the child is maintained at all times during the trial. (7) The Special Court shall ensure that the identity of the child is not disclosed at any time during the course of investigation or trial: Provided that for reasons to be recorded in writing, the Special Court may permit such disclosure, if in its opinion such disclosure is in the interest of the child. Explanation.-For the purposes of this Sub-section, the identity of the child shall include the identity of the childs family, school, relatives, neighbourhood or any other information by which the identity of the child may be revealed. 16. Section 35 provides for recording of the evidence of the child and disposal of the cases. The same being important for the present purpose, it is quoted here: 35. Period for recording of evidence of child and disposal of case.-(1) The evidence of the child shall be recorded within a period of thirty days of the Special Court taking cognizance of the offence and reasons for delay, if any, shall be recorded by the Special Court. (2) The Special Court shall complete the trial, as far as possible, within a period of one year from the date of taking cognizance of the offence. 17. The aforesaid provisions make it clear as crystal that the legislature has commanded the State to take various steps at many levels so that the child is protected and the trial is appropriately conducted. 18. Section 37 provides that the Special Court shall try cases in camera and in the presence of the parents of the child or any other person in whom the child has trust or confidence; Section 36 casts a duty on the Special Court to ensure that the child is not exposed in any way to the Accused at the time of recording of the evidence while at the same time ensuring that the Accused is in a position to hear the statement of the child and communicate with his advocate. The objective of the POCSO Act is to protect the child from many an aspect so that he/she does not feel a sense of discomfort or fear or is reminded of the horrified experience and further there has to be a child friendly atmosphere. 19. Speaking about the child, a three-Judge Bench in M.C. Mehta v. State of T.N. and Ors. (1996) 6 SCC 756 opined that: ... child is the father of man. To enable fathering of a valiant and vibrant man, the child must be groomed well in the formative years of his life. He must receive education, acquire knowledge of man and materials and blossom in such an atmosphere that on reaching age, he is found to be a man with a mission, a man who matters so far as the society is concerned. 20. In Supreme Court Women Lawyers Association (SCWLA) v. Union of India and Anr. (2016) 3 SCC 680 , this Court has observed: In the case at hand, we are concerned with the rape committed on a girl child. As has been urged before us that such crimes are rampant for unfathomable reasons and it is the obligation of the law and law-makers to cultivate respect for the children and especially the girl children who are treated with such barbarity and savageness as indicated earlier. The learned Senior Counsel appearing for the Petitioner has emphasised on the obtaining horrendous and repulsive situation. Alice Miller, a Swiss psychologist, speaking about child abuse has said: Child abuse damages a person for life and that damage is in no way diminished by the ignorance of the perpetrator. It is only with the uncovering of the complete truth as it affects all those involved that a genuinely viable solution can be found to the dangers of child abuse. 21. Keeping in view the protection of the children and the statutory scheme conceived under the POCSO Act, it is necessary to issue certain directions so that the legislative intent and the purpose are actually fructified at the ground level and it becomes possible to bridge the gap between the legislation remaining a mere parchment or blueprint of social change and its practice or implementation in true essence and spirit is achieved. 22. Mr. Srivastava has provided us a chart relating to the cases pending under the POCSO Act in all States except Andhra Pradesh, Telangana, Rajasthan and Jammu and Kashmir in respect of which the data is not available. We may take the example of two States, namely, Madhya Pradesh and Uttar Pradesh. The pendency of such cases in the State of Uttar Pradesh is approximately 30884 and in the State of Madhya Pradesh, approximately 10117. 23. It is submitted by Mr. Srivastava that in both the States, the cases are pending at the evidence stage beyond one year. We are absolutely conscious that Section 35(2) of the Act says as far as possible. Be that as it may, regard being had to the spirit of the Act, we think it appropriate to issue the following directions: | 1[ds]21. Keeping in view the protection of the children and the statutory scheme conceived under the POCSO Act, it is necessary to issue certain directions so that the legislative intent and the purpose are actually fructified at the ground level and it becomes possible to bridge the gap between the legislation remaining a mere parchment or blueprint of social change and its practice or implementation in true essence and spirit is achieved22. Mr. Srivastava has provided us a chart relating to the cases pending under the POCSO Act in all States except Andhra Pradesh, Telangana, Rajasthan and Jammu and Kashmir in respect of which the data is not available. We may take the example of two States, namely, Madhya Pradesh and Uttar Pradesh. The pendency of such cases in the State of Uttar Pradesh is approximately 30884 and in the State of Madhya Pradesh, approximately 1011723. It is submitted by Mr. Srivastava that in both the States, the cases are pending at the evidence stage beyond one year. We are absolutely conscious that Section 35(2) of the Act says as far as possible. | 1 | 3,413 | 204 | ### 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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for trial, upon receiving a complaint of facts which constitute such offence, or upon a police report of such facts. (2) The Special Public Prosecutor, or as the case may be, the counsel appearing for the Accused shall, while recording the examination-in-chief, cross-examination or re-examination of the child, communicate the questions to be put to the child to the Special Court which shall in turn put those questions to the child. (3) The Special Court may, if it considers necessary, permit frequent breaks for the child during the trial. (4) The Special Court shall create a child-friendly atmosphere by allowing a family member, a guardian, a friend or a relative, in whom the child has trust or confidence, to be present in the court. (5) The Special Court shall ensure that the child is not called repeatedly to testify in the court. (6) The Special Court not permit aggressive questioning or character assassination of the child and ensure that dignity of the child is maintained at all times during the trial. (7) The Special Court shall ensure that the identity of the child is not disclosed at any time during the course of investigation or trial: Provided that for reasons to be recorded in writing, the Special Court may permit such disclosure, if in its opinion such disclosure is in the interest of the child. Explanation.-For the purposes of this Sub-section, the identity of the child shall include the identity of the childs family, school, relatives, neighbourhood or any other information by which the identity of the child may be revealed. 16. Section 35 provides for recording of the evidence of the child and disposal of the cases. The same being important for the present purpose, it is quoted here: 35. Period for recording of evidence of child and disposal of case.-(1) The evidence of the child shall be recorded within a period of thirty days of the Special Court taking cognizance of the offence and reasons for delay, if any, shall be recorded by the Special Court. (2) The Special Court shall complete the trial, as far as possible, within a period of one year from the date of taking cognizance of the offence. 17. The aforesaid provisions make it clear as crystal that the legislature has commanded the State to take various steps at many levels so that the child is protected and the trial is appropriately conducted. 18. Section 37 provides that the Special Court shall try cases in camera and in the presence of the parents of the child or any other person in whom the child has trust or confidence; Section 36 casts a duty on the Special Court to ensure that the child is not exposed in any way to the Accused at the time of recording of the evidence while at the same time ensuring that the Accused is in a position to hear the statement of the child and communicate with his advocate. The objective of the POCSO Act is to protect the child from many an aspect so that he/she does not feel a sense of discomfort or fear or is reminded of the horrified experience and further there has to be a child friendly atmosphere. 19. Speaking about the child, a three-Judge Bench in M.C. Mehta v. State of T.N. and Ors. (1996) 6 SCC 756 opined that: ... child is the father of man. To enable fathering of a valiant and vibrant man, the child must be groomed well in the formative years of his life. He must receive education, acquire knowledge of man and materials and blossom in such an atmosphere that on reaching age, he is found to be a man with a mission, a man who matters so far as the society is concerned. 20. In Supreme Court Women Lawyers Association (SCWLA) v. Union of India and Anr. (2016) 3 SCC 680 , this Court has observed: In the case at hand, we are concerned with the rape committed on a girl child. As has been urged before us that such crimes are rampant for unfathomable reasons and it is the obligation of the law and law-makers to cultivate respect for the children and especially the girl children who are treated with such barbarity and savageness as indicated earlier. The learned Senior Counsel appearing for the Petitioner has emphasised on the obtaining horrendous and repulsive situation. Alice Miller, a Swiss psychologist, speaking about child abuse has said: Child abuse damages a person for life and that damage is in no way diminished by the ignorance of the perpetrator. It is only with the uncovering of the complete truth as it affects all those involved that a genuinely viable solution can be found to the dangers of child abuse. 21. Keeping in view the protection of the children and the statutory scheme conceived under the POCSO Act, it is necessary to issue certain directions so that the legislative intent and the purpose are actually fructified at the ground level and it becomes possible to bridge the gap between the legislation remaining a mere parchment or blueprint of social change and its practice or implementation in true essence and spirit is achieved. 22. Mr. Srivastava has provided us a chart relating to the cases pending under the POCSO Act in all States except Andhra Pradesh, Telangana, Rajasthan and Jammu and Kashmir in respect of which the data is not available. We may take the example of two States, namely, Madhya Pradesh and Uttar Pradesh. The pendency of such cases in the State of Uttar Pradesh is approximately 30884 and in the State of Madhya Pradesh, approximately 10117. 23. It is submitted by Mr. Srivastava that in both the States, the cases are pending at the evidence stage beyond one year. We are absolutely conscious that Section 35(2) of the Act says as far as possible. Be that as it may, regard being had to the spirit of the Act, we think it appropriate to issue the following directions:
### Response:
1
### Explanation:
21. Keeping in view the protection of the children and the statutory scheme conceived under the POCSO Act, it is necessary to issue certain directions so that the legislative intent and the purpose are actually fructified at the ground level and it becomes possible to bridge the gap between the legislation remaining a mere parchment or blueprint of social change and its practice or implementation in true essence and spirit is achieved22. Mr. Srivastava has provided us a chart relating to the cases pending under the POCSO Act in all States except Andhra Pradesh, Telangana, Rajasthan and Jammu and Kashmir in respect of which the data is not available. We may take the example of two States, namely, Madhya Pradesh and Uttar Pradesh. The pendency of such cases in the State of Uttar Pradesh is approximately 30884 and in the State of Madhya Pradesh, approximately 1011723. It is submitted by Mr. Srivastava that in both the States, the cases are pending at the evidence stage beyond one year. We are absolutely conscious that Section 35(2) of the Act says as far as possible.
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N.C. Bansal Vs. Uttar Pradesh Financial Corporation & Another | seeking amendment in the plaint, and (iii) application seeking directions against the respondents for production of some original documents. 5. The appellant is the plaintiff and the respondents are the defendants in the suit out of which this appeal arises. 6. The appellant (plaintiff) has filed a civil suit being Civil Suit No. 252/2005 now renumbered as (C.S. No 7930/2016) against the respondents (defendants) in the Court of JSCC-Cum ASCJ-cum- Guardian Judge (West) Delhi. 7. The appellants suit is for a declaration and permanent injunction in relation to certain properties (hereinafter referred to as the suit property). The appellant has claimed the following reliefs: It is, therefore, most respectfully prayed that the Honble Court be pleased - to pass the decree of declaration as the said property (at the second floor) bearing No.21 NWA Club Road, Punjabi Bagh Extn., New Delhi-110026 is not a collateral security or not a mortgage property under the defendants and also to pass a decree of permanent injunction in favour of the plaintiff and against the defendants thereby restraining the defendants its agents, servant, attorneys, nominees etc. etc. from taking forcible possession or selling of the said premises bearing No.21, NWA Club Road, Punjabi Bagh Extn., New Delhi-110026 (situated at second floor on plot no.21 in NVVA in the layout plan of the Adarsh Shawan Co-op. House Building Society Ltd. Colony known as Punjabi Bagh Extn. In the area of Viii Madipur, Delhi-110026 as shown in red colour in the site plan and from creating any interference in the use and enjoyment of the said property, in the interest of justice. Any other relief, which this Honble Court may deem fit and proper be also passed in favour of the plaintiff and against the defendants along with the cost of the suit. 8. The respondents have filed their written statement and denied the appellants claim set up in the plaint. The respondents, however, also raised certain legal objections regarding the maintainability of the appellants suit. The Trial Court upheld the objections raised by the respondent and accordingly dismissed the appellants suit vide judgment/decree dated 20.09.2011 in the initial stage itself as not maintainable. 9. The appellant felt aggrieved and filed appeal being R.C.A. 121/14/11 before the Additional District Judge, Tis Hazari Court, New Delhi. By order dated 20.11.2014, the first Appellate Court allowed the appellants appeal and while setting aside the judgment/decree of the Trial Court remanded the case to the Trial Court for deciding the suit on merits. 10. It appears that the respondents (defendants) did not take up the matter to the High Court against the order of the first Appellate Court and, therefore, the case has now gone back to the Trial Court to proceed with the trial in the suit. 11. After remand, the appellant (plaintiff), as mentioned above, filed three applications in his pending suit. One was under Order 7 Rule 14 of Code seeking permission to file some additional documents, second was an application under Order 6 Rule 17 seeking amendment in the plaint and the third application was for a direction to the respondents for production of some original documents. 12. The respondents (defendants) opposed the applications filed by the appellant. The Trial Court by order dated 21.09.2016 dismissed the applications filed by the appellant (plaintiff). 13. The appellant felt aggrieved and filed writ petition under Article 227 of the Constitution of India in the High Court of Delhi. By impugned order, the Single Judge dismissed the appellants (plaintiffs) writ petition and upheld the order of the Trial Court. 14. Against the said order, the appellant(plaintiff) has felt aggrieved and filed this appeal by special leave in this Court questioning its legality and correctness. 15. Heard Mr. Shantanu Bansal, learned counsel for the appellant and Mr. S.K. Misra, learned counsel for the respondents. 16. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside the order of the Trial Court dated 21.09.2016 and also the impugned order of the High Court allow the two applications filed by the plaintiff (appellant herein), namely, application filed under Order 7 Rule 14 and the application filed under Order 6 Rule 17 of the Code. 17. We have perused the pleadings and also the two applications under consideration filed by the appellant. In our considered opinion, both the applications filed by the appellant(plaintiff) should have been allowed and he should have been permitted to amend the plaint and file the additional documents. 18. It is for the reason that firstly, the suit is still at the initial stage, i.e., the trial has not yet begun; Second, the proposed amendment sought in the plaint does not change the nature of suit; Third, the applications could not be said to have been filed by the plaintiff belatedly because the suit had been dismissed by the Trial Court as not maintainable in its initial stages and for all these years it was sub judice in appeal. It is only after the Appellate court remanded the case to the Trial Court for its trial, the appellant (plaintiff) filed the applications in the suit and sought permission to amend the plaint and file certain documents in support thereof; Fourth, the Courts, in these circumstances, should have been liberal in allowing the proposed amendment. 19 So far as the filing of documents is concerned, this application too should have been allowed on the same grounds on which we have allowed the amendment application. In other words, when the suit is still at its initial stage and the trial is yet to begin and when the documents filed are alleged to be that of the respondents themselves having obtained through RTI, there is no reason why the appellant(plaintiff) be not allowed to file them. 20. So far as the third application for production of documents by the respondents is concerned, no argument was advanced by the learned counsel for the appellant. | 0[ds]16. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside the order of the Trial Court dated 21.09.2016 and also the impugned order of the High Court allow the two applications filed by the plaintiff (appellant herein), namely, application filed under Order 7 Rule 14 and the application filed under Order 6 Rule 17 of the Code17. We have perused the pleadings and also the two applications under consideration filed by the appellant. In our considered opinion, both the applications filed by the appellant(plaintiff) should have been allowed and he should have been permitted to amend the plaint and file the additional documents18. It is for the reason that firstly, the suit is still at the initial stage, i.e., the trial has not yet begun; Second, the proposed amendment sought in the plaint does not change the nature of suit; Third, the applications could not be said to have been filed by the plaintiff belatedly because the suit had been dismissed by the Trial Court as not maintainable in its initial stages and for all these years it was sub judice in appeal. It is only after the Appellate court remanded the case to the Trial Court for its trial, the appellant (plaintiff) filed the applications in the suit and sought permission to amend the plaint and file certain documents in support thereof; Fourth, the Courts, in these circumstances, should have been liberal in allowing the proposed amendment19 So far as the filing of documents is concerned, this application too should have been allowed on the same grounds on which we have allowed the amendment application. In other words, when the suit is still at its initial stage and the trial is yet to begin and when the documents filed are alleged to be that of the respondents themselves having obtained through RTI, there is no reason why the appellant(plaintiff) be not allowed to file them20. So far as the third application for production of documents by the respondents is concerned, no argument was advanced by the learned counsel for the appellant. | 0 | 1,303 | 403 | ### 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:
seeking amendment in the plaint, and (iii) application seeking directions against the respondents for production of some original documents. 5. The appellant is the plaintiff and the respondents are the defendants in the suit out of which this appeal arises. 6. The appellant (plaintiff) has filed a civil suit being Civil Suit No. 252/2005 now renumbered as (C.S. No 7930/2016) against the respondents (defendants) in the Court of JSCC-Cum ASCJ-cum- Guardian Judge (West) Delhi. 7. The appellants suit is for a declaration and permanent injunction in relation to certain properties (hereinafter referred to as the suit property). The appellant has claimed the following reliefs: It is, therefore, most respectfully prayed that the Honble Court be pleased - to pass the decree of declaration as the said property (at the second floor) bearing No.21 NWA Club Road, Punjabi Bagh Extn., New Delhi-110026 is not a collateral security or not a mortgage property under the defendants and also to pass a decree of permanent injunction in favour of the plaintiff and against the defendants thereby restraining the defendants its agents, servant, attorneys, nominees etc. etc. from taking forcible possession or selling of the said premises bearing No.21, NWA Club Road, Punjabi Bagh Extn., New Delhi-110026 (situated at second floor on plot no.21 in NVVA in the layout plan of the Adarsh Shawan Co-op. House Building Society Ltd. Colony known as Punjabi Bagh Extn. In the area of Viii Madipur, Delhi-110026 as shown in red colour in the site plan and from creating any interference in the use and enjoyment of the said property, in the interest of justice. Any other relief, which this Honble Court may deem fit and proper be also passed in favour of the plaintiff and against the defendants along with the cost of the suit. 8. The respondents have filed their written statement and denied the appellants claim set up in the plaint. The respondents, however, also raised certain legal objections regarding the maintainability of the appellants suit. The Trial Court upheld the objections raised by the respondent and accordingly dismissed the appellants suit vide judgment/decree dated 20.09.2011 in the initial stage itself as not maintainable. 9. The appellant felt aggrieved and filed appeal being R.C.A. 121/14/11 before the Additional District Judge, Tis Hazari Court, New Delhi. By order dated 20.11.2014, the first Appellate Court allowed the appellants appeal and while setting aside the judgment/decree of the Trial Court remanded the case to the Trial Court for deciding the suit on merits. 10. It appears that the respondents (defendants) did not take up the matter to the High Court against the order of the first Appellate Court and, therefore, the case has now gone back to the Trial Court to proceed with the trial in the suit. 11. After remand, the appellant (plaintiff), as mentioned above, filed three applications in his pending suit. One was under Order 7 Rule 14 of Code seeking permission to file some additional documents, second was an application under Order 6 Rule 17 seeking amendment in the plaint and the third application was for a direction to the respondents for production of some original documents. 12. The respondents (defendants) opposed the applications filed by the appellant. The Trial Court by order dated 21.09.2016 dismissed the applications filed by the appellant (plaintiff). 13. The appellant felt aggrieved and filed writ petition under Article 227 of the Constitution of India in the High Court of Delhi. By impugned order, the Single Judge dismissed the appellants (plaintiffs) writ petition and upheld the order of the Trial Court. 14. Against the said order, the appellant(plaintiff) has felt aggrieved and filed this appeal by special leave in this Court questioning its legality and correctness. 15. Heard Mr. Shantanu Bansal, learned counsel for the appellant and Mr. S.K. Misra, learned counsel for the respondents. 16. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside the order of the Trial Court dated 21.09.2016 and also the impugned order of the High Court allow the two applications filed by the plaintiff (appellant herein), namely, application filed under Order 7 Rule 14 and the application filed under Order 6 Rule 17 of the Code. 17. We have perused the pleadings and also the two applications under consideration filed by the appellant. In our considered opinion, both the applications filed by the appellant(plaintiff) should have been allowed and he should have been permitted to amend the plaint and file the additional documents. 18. It is for the reason that firstly, the suit is still at the initial stage, i.e., the trial has not yet begun; Second, the proposed amendment sought in the plaint does not change the nature of suit; Third, the applications could not be said to have been filed by the plaintiff belatedly because the suit had been dismissed by the Trial Court as not maintainable in its initial stages and for all these years it was sub judice in appeal. It is only after the Appellate court remanded the case to the Trial Court for its trial, the appellant (plaintiff) filed the applications in the suit and sought permission to amend the plaint and file certain documents in support thereof; Fourth, the Courts, in these circumstances, should have been liberal in allowing the proposed amendment. 19 So far as the filing of documents is concerned, this application too should have been allowed on the same grounds on which we have allowed the amendment application. In other words, when the suit is still at its initial stage and the trial is yet to begin and when the documents filed are alleged to be that of the respondents themselves having obtained through RTI, there is no reason why the appellant(plaintiff) be not allowed to file them. 20. So far as the third application for production of documents by the respondents is concerned, no argument was advanced by the learned counsel for the appellant.
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0
### Explanation:
16. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside the order of the Trial Court dated 21.09.2016 and also the impugned order of the High Court allow the two applications filed by the plaintiff (appellant herein), namely, application filed under Order 7 Rule 14 and the application filed under Order 6 Rule 17 of the Code17. We have perused the pleadings and also the two applications under consideration filed by the appellant. In our considered opinion, both the applications filed by the appellant(plaintiff) should have been allowed and he should have been permitted to amend the plaint and file the additional documents18. It is for the reason that firstly, the suit is still at the initial stage, i.e., the trial has not yet begun; Second, the proposed amendment sought in the plaint does not change the nature of suit; Third, the applications could not be said to have been filed by the plaintiff belatedly because the suit had been dismissed by the Trial Court as not maintainable in its initial stages and for all these years it was sub judice in appeal. It is only after the Appellate court remanded the case to the Trial Court for its trial, the appellant (plaintiff) filed the applications in the suit and sought permission to amend the plaint and file certain documents in support thereof; Fourth, the Courts, in these circumstances, should have been liberal in allowing the proposed amendment19 So far as the filing of documents is concerned, this application too should have been allowed on the same grounds on which we have allowed the amendment application. In other words, when the suit is still at its initial stage and the trial is yet to begin and when the documents filed are alleged to be that of the respondents themselves having obtained through RTI, there is no reason why the appellant(plaintiff) be not allowed to file them20. So far as the third application for production of documents by the respondents is concerned, no argument was advanced by the learned counsel for the appellant.
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State of Kerala & Others Vs. Yusuff & Others | Abhay Manohar Sapre, J.1. Civil appeal No. 2099 of 2008 is filed against the final judgment dated 22.01.2004 passed by the High Court of Kerala at Ernakulam in Writ Appeal No. 198 of 2000 whereby the High Court disposed of the writ appeal filed by the appellants herein by granting six months time to complete the demarcation and to hand over the land in question. 2) Civil Appeal No. 2100 of 2008 is filed against the final order dated 11.06.2004 passed by the High Court of Kerala at Ernakulam in R.P.No. 254 of 2004 filed against the judgment dated 22.01.2004 in W.A. No. 198 of 2000 by which the High Court closed the review petition on the basis of the submission of the Government pleader that the Government is resorting to other remedies.2. We herein set out the facts, in brief, to appreciate the issue involved in these appeals.3. The impugned judgment and order read as under:"Judgment in W.A. No. 198 of 2000The learned Government Pleader submits that what the Government requires is only some time to demarcate the land in question for the purpose of restoration to the Respondents. Accordingly, the Writ Appeal is disposed of, as suggested by the Government Pleader, granting six months time from today to complete the demarcation and to hand over the land in question.""Order in R.P. No. 254 of 2004Government Pleader submits that the Government is resorting to other remedies.Review Petition is closed."4. The dispute in these appeals essentially center around to the forest land measuring around 4.0755 Hectares in Sy. No 2019/Part, situated in Pattassery (Agaly) Village, Mannaghat Taluk, District Palakkad in the State of Kerala. It is between the State (Forest Department) on the one hand and the private individuals(respondents) on the other hand. The respondents assert their rights on the said land to the exclusion of the State on variety of grounds whereas the State equally disputes the respondents claim and assert their rights.5. The Forest Tribunal, Manjeri, by order dated 03.10.1979, in O.A. No. 97 of 1978 first decided the dispute. It was then carried in writ jurisdiction to the High Court in O.P. No 1470 of 1991 and was decided on merits and then was taken in appeal being W.A. No 198 of 2000 before the Division Bench which resulted in passing the impugned judgment giving rise to filing of C.A. No. 2099 of 2008 by the State. Against the judgment in W.A. No. 198 of 2000, Review Petition No. 254 of 2004 was filed before the High Court, which was closed by order dated 11.06.2004. Against the said order, C.A. No. 2100 of 2008 is filed.6. Heard Mr. V. Giri, learned senior counsel for the appellants and Mr. M.S. Vishnu Sankar, learned counsel for the respondents.7. Submission of learned Senior counsel for the appellant(State) was only one. According to him, having regard to the nature of controversy which was the subject matter before the Forest Tribunal in O.A. No. 97 of 1978 and then carried to the High Court in O.P. No. 1470 of 1991 and lastly, in appeal being W.A. No. 198 of 2000 at the instance of the State, which is now finally brought to this Court in these appeals, the High Court ought to have dealt with and decided variety of grounds urged on merits by the parties.8. Learned Counsel pointed out that presumably due to reason that the States counsel did not argue any point, the High Court did not consider it necessary to go into any of the contentious issues but, according to learned counsel, it caused serious prejudice to the State.9. Learned counsel pointed out from the record that the States counsel was neither authorized to make such statement before the Division Bench on behalf of the State and nor was there any occasion for him to make such statement which unfortunately resulted in disposal of the States appeal without deciding any of the contentious issues. Learned counsel, therefore, urged for hearing the States writ appeal on merits by the High Court afresh in accordance with law.10. In reply, learned counsel for the respondents (writ petitioners) while supporting the impugned judgment/order contended that the impugned judgment/order deserve to be upheld calling no interference therein. Learned counsel urged that the States counsel rightly made the concession which was duly recorded by the Division Bench resulting in disposal of the appeal.11. Learned counsel also urged several issues arising in the case on merits to show that the appellant (State) has no case even on facts.12. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeals in part and while setting aside the impugned judgment remand the case to the High Court (Division Bench) to decide the writ appeal afresh on merits.13. In our view, having regard to the nature of controversy involved in these appeals, the contentious issues decided by the Tribunal and the Single Judge of the High Court, the implications of various Forest and Revenue laws governing the issues and further keeping in view the Commissioners report obtained by the Division Bench pursuant to the order dated 29.10.2000 in relation to the disputed land in question, the writ appeal deserves to be heard on merits.14. So far as the issue with regard to the statement of the appellants counsel made before the High Court is concerned, we find from the record of the case that it was not called for inasmuch as the same appears to have been made under some misconception. Be that as it may, in the light of what we have observed supra, it is not necessary to go into this question any more.15. In our view, the remand of the appeal to the High Court for its decision on merits would not, in any way, cause prejudice to the respondents because they would also be heard in appeal. | 1[ds]12. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeals in part and while setting aside the impugned judgment remand the case to the High Court (Division Bench) to decide the writ appeal afresh on merits.13. In our view, having regard to the nature of controversy involved in these appeals, the contentious issues decided by the Tribunal and the Single Judge of the High Court, the implications of various Forest and Revenue laws governing the issues and further keeping in view the Commissioners report obtained by the Division Bench pursuant to the order dated 29.10.2000 in relation to the disputed land in question, the writ appeal deserves to be heard on merits.14. So far as the issue with regard to the statement of the appellants counsel made before the High Court is concerned, we find from the record of the case that it was not called for inasmuch as the same appears to have been made under some misconception. Be that as it may, in the light of what we have observed supra, it is not necessary to go into this question any more.15. In our view, the remand of the appeal to the High Court for its decision on merits would not, in any way, cause prejudice to the respondents because they would also be heard in appeal.We make it clear that we have not expressed any opinion on the merits of the controversy involved in these appeals and, therefore, the writ appeal would be decided by the High Court uninfluenced by any of our observations. | 1 | 1,105 | 297 | ### 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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Abhay Manohar Sapre, J.1. Civil appeal No. 2099 of 2008 is filed against the final judgment dated 22.01.2004 passed by the High Court of Kerala at Ernakulam in Writ Appeal No. 198 of 2000 whereby the High Court disposed of the writ appeal filed by the appellants herein by granting six months time to complete the demarcation and to hand over the land in question. 2) Civil Appeal No. 2100 of 2008 is filed against the final order dated 11.06.2004 passed by the High Court of Kerala at Ernakulam in R.P.No. 254 of 2004 filed against the judgment dated 22.01.2004 in W.A. No. 198 of 2000 by which the High Court closed the review petition on the basis of the submission of the Government pleader that the Government is resorting to other remedies.2. We herein set out the facts, in brief, to appreciate the issue involved in these appeals.3. The impugned judgment and order read as under:"Judgment in W.A. No. 198 of 2000The learned Government Pleader submits that what the Government requires is only some time to demarcate the land in question for the purpose of restoration to the Respondents. Accordingly, the Writ Appeal is disposed of, as suggested by the Government Pleader, granting six months time from today to complete the demarcation and to hand over the land in question.""Order in R.P. No. 254 of 2004Government Pleader submits that the Government is resorting to other remedies.Review Petition is closed."4. The dispute in these appeals essentially center around to the forest land measuring around 4.0755 Hectares in Sy. No 2019/Part, situated in Pattassery (Agaly) Village, Mannaghat Taluk, District Palakkad in the State of Kerala. It is between the State (Forest Department) on the one hand and the private individuals(respondents) on the other hand. The respondents assert their rights on the said land to the exclusion of the State on variety of grounds whereas the State equally disputes the respondents claim and assert their rights.5. The Forest Tribunal, Manjeri, by order dated 03.10.1979, in O.A. No. 97 of 1978 first decided the dispute. It was then carried in writ jurisdiction to the High Court in O.P. No 1470 of 1991 and was decided on merits and then was taken in appeal being W.A. No 198 of 2000 before the Division Bench which resulted in passing the impugned judgment giving rise to filing of C.A. No. 2099 of 2008 by the State. Against the judgment in W.A. No. 198 of 2000, Review Petition No. 254 of 2004 was filed before the High Court, which was closed by order dated 11.06.2004. Against the said order, C.A. No. 2100 of 2008 is filed.6. Heard Mr. V. Giri, learned senior counsel for the appellants and Mr. M.S. Vishnu Sankar, learned counsel for the respondents.7. Submission of learned Senior counsel for the appellant(State) was only one. According to him, having regard to the nature of controversy which was the subject matter before the Forest Tribunal in O.A. No. 97 of 1978 and then carried to the High Court in O.P. No. 1470 of 1991 and lastly, in appeal being W.A. No. 198 of 2000 at the instance of the State, which is now finally brought to this Court in these appeals, the High Court ought to have dealt with and decided variety of grounds urged on merits by the parties.8. Learned Counsel pointed out that presumably due to reason that the States counsel did not argue any point, the High Court did not consider it necessary to go into any of the contentious issues but, according to learned counsel, it caused serious prejudice to the State.9. Learned counsel pointed out from the record that the States counsel was neither authorized to make such statement before the Division Bench on behalf of the State and nor was there any occasion for him to make such statement which unfortunately resulted in disposal of the States appeal without deciding any of the contentious issues. Learned counsel, therefore, urged for hearing the States writ appeal on merits by the High Court afresh in accordance with law.10. In reply, learned counsel for the respondents (writ petitioners) while supporting the impugned judgment/order contended that the impugned judgment/order deserve to be upheld calling no interference therein. Learned counsel urged that the States counsel rightly made the concession which was duly recorded by the Division Bench resulting in disposal of the appeal.11. Learned counsel also urged several issues arising in the case on merits to show that the appellant (State) has no case even on facts.12. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeals in part and while setting aside the impugned judgment remand the case to the High Court (Division Bench) to decide the writ appeal afresh on merits.13. In our view, having regard to the nature of controversy involved in these appeals, the contentious issues decided by the Tribunal and the Single Judge of the High Court, the implications of various Forest and Revenue laws governing the issues and further keeping in view the Commissioners report obtained by the Division Bench pursuant to the order dated 29.10.2000 in relation to the disputed land in question, the writ appeal deserves to be heard on merits.14. So far as the issue with regard to the statement of the appellants counsel made before the High Court is concerned, we find from the record of the case that it was not called for inasmuch as the same appears to have been made under some misconception. Be that as it may, in the light of what we have observed supra, it is not necessary to go into this question any more.15. In our view, the remand of the appeal to the High Court for its decision on merits would not, in any way, cause prejudice to the respondents because they would also be heard in appeal.
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12. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeals in part and while setting aside the impugned judgment remand the case to the High Court (Division Bench) to decide the writ appeal afresh on merits.13. In our view, having regard to the nature of controversy involved in these appeals, the contentious issues decided by the Tribunal and the Single Judge of the High Court, the implications of various Forest and Revenue laws governing the issues and further keeping in view the Commissioners report obtained by the Division Bench pursuant to the order dated 29.10.2000 in relation to the disputed land in question, the writ appeal deserves to be heard on merits.14. So far as the issue with regard to the statement of the appellants counsel made before the High Court is concerned, we find from the record of the case that it was not called for inasmuch as the same appears to have been made under some misconception. Be that as it may, in the light of what we have observed supra, it is not necessary to go into this question any more.15. In our view, the remand of the appeal to the High Court for its decision on merits would not, in any way, cause prejudice to the respondents because they would also be heard in appeal.We make it clear that we have not expressed any opinion on the merits of the controversy involved in these appeals and, therefore, the writ appeal would be decided by the High Court uninfluenced by any of our observations.
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Pottery Mazdoor Panchayat Vs. Perfect Pottery Company Limited and Another | the opinion that the closure was not for business reasons but was a malafide decision taken in order to drive the Union out of existence and to cheat the workers of their lawful dues. 9. On June 28, 1967, the Managing Director of the respondent sent a reply to the Regional Labour Commissioner dealing with the contentions made by the Union in its letter of June 22, , 1967. The Managing Director contended that no industrial dispute existed or was apprehended and that the Conciliation officer had, therefore, no jurisdiction under the Act to hold any proceedings. In the order dated April 30, 1970, of the Industrial Tribunal-cum-Labour Court, Jabalpur, reference has been made to an affidavit which was filed on behalf of the workers for the purpose of securing an interim award. We have, looked at the affidavit for ourselves and are in agreement with the view expressed by the Tribunal tha t there is a clear and unequivocal admission on the part of the workers in that affidavit to the effect that the business was in fact closed by the respondent. The High Court has also referred to a statement dated June 16, 1967, in which it was stat ed on behalf of the workmen that since the establishment had already closed down, there was no necessity for making submissions on the point relating to the reduction in the number of employees and revision of the workload.Learned counsel for t he appellant relies upon a judgment of this Court in The Management of Express Newspapers Ltd. v. Workers and Staff Employed under it and others, ([1963] 3 S.C.R. 540, 548) in which it was observed that if, in fact and in substance, the closure of the business is a lock out and the business has been apparently closed for the purpose of disguising a lock out and a dispute is raised in respect of such a closure it would be an industrial dispute which an Industrial Tribunal is competent to deal with. There , can, with respect, be no quarrel with this proposition but the true question which arises for consideration is whether in the instant case there was any dispute at all, whether there was in fact a closure or whether the management purported to close the business as a cloak or disguise for what in fact and substance was a lock out. As we have shown earlier no such dispute was ever raised, the limited dispute which was raised by the appellant being whether the closure of the business was effected for a proper and a justifiable reason. 10. The appellants counsel also drew our attention to the definition of closure in section 2(8) of the State Act according to which closure to the extent material , means the closing of any place or part of a place of employment or the total or partial suspension of work by an employer or the total or partial refusal by an employer to continue to employ persons employed by him whether such closing, suspension or refusal is or is not in consequence of an industrial dispute. It may perhaps be that the concept of closure in the State Act is wider than what is commonly understood by that expression but we do not appreciate how the circumstance that even a partial closure of a business is closure within the meaning of the State Act can assist the appellant in its contention that under the terms of the present references, the Tribunals were entitled to enter into the question as to the fact of the closure. In this connection the provisions of section 82 of the state Act, to which Mr. Tarkunde appearing on behalf of the respondent drew our attention, are very significant. That section provides that the State Government may make a reference to a Labour Court or the Industrial Court for a declaration whether any proposed strike, lock- out, closure or stoppage will be illegal. If ever it was the case of the appellant that there was in fact no closure and there was really an illegal lock-out, the reference would have been asked for and made not under section 51 under which it was made, but under section 82.We are, therefore, of the view that the High Court was right in coming to the conclusion that the two Tribuna ls had no jurisdiction to go behind the references and inquire into the question whether the closure of business, which was in fact effected" was decided upon for reasons which were proper and justifiable. The propriety of or justification for t he closure of a business, in fact and truly effected, cannot raise an industrial dispute as contemplated by the State and Central Acts. 11. It is unnecessary to consider the second question as regards the payment of retrenchment compensation a nd we will, therefore, express no opinion as to whether the Tribunals had jurisdiction to go into that question. Happily, the parties have arrived at a settlement on that question under which, the respondent agrees to fix within a period of six months from today the retrenchment compensation payable to the retrenched workers in accordance with the provisions of section 25FFF of the Central Act, namely, the Industrial Disputes Act, 1947, without the aid of the proviso t o that section. After the retrenchment compensation is so fixed, a copy of the decision fixing the compensation payable to each of the workers will be sent by the respondent to the appellant Union. The workers or their legal representatives, as the case may be, will then be entitled to receive the retrenchment compensation from the respondent, which agrees to pay the same to them. The respondent will be entitled to set off of the amounts of retrenchment compensation already paid to the workers against the amounts found due to them under this settlement. On receiving the retrenchment compensation the workers concerned shall withdraw the applications, if any, filed by them for relief in that behalf. 12. | 0[ds]Having heard a closely thought out argument made by Mr. Gupta on behalf of the appellant, we are of the opinion that the High Court is right in its view on the first question. The very terms of the references show that the point of dispute between the parties was not the fact of the closure of its business by the respondent but the propriety and justification of the respondents decision to close down the business. That is why the references were expressed to say whether the proposed closure of the business was proper and justified. In other words, by the references, the Tribunals were not called upon by the Government to adjudicate upon the question as to whether there was in fact a closure of business or whether under the pretence of closing the business the workers were locked ou t by the management. The references being limited to the narrow question as to whether the closure was proper and justified, the Tribunals by the very terms of the references, had no jurisdiction to go behind the fact of closure and inquire into the question whether the business was in fact closed down by the management.It is not necessary to rely exclusively on the terms of references for coming to this conclusion. The history of the dispute and the various documents on rec ord of the references themselves indicate that the dispute between the parties related not to the question as to whether the business, in fact, was closed by the management but whether there was any justification or propriety on the part of the management in deciding to close down the business. On June 22, 1967, the General Secretary of the appellant Union addressed a letter to the Regional Labour Commissioner, Jabalpur, by which the present dispute was raised. The first paragraph of that letter says: "that the Company had notified is decision to close down the mine with effect from July 1, 1967, that some of the workers were served with notices of retrenchment individually but that retrenchment compensation was not paid by the management which was illegal and violative of the provisions of the Industrial Disputes Act". This grievance assumes the validity of the decision to close down the business and proceeds to make a claim arising out of a valid closure namely, a claim for retrenchment compensation. The second paragraph of thethe aforesaid letter begins by saying that "the closure of the mine and the factory is malafide". The reasons for the closure are then set out in that paragraph which winds up by saying that the Union was of the opinion that the closure was not for business reasons but was a malafide decision taken in order to drive the Union out of existence and to cheat the workers of their lawful duesOn June 28, 1967, the Managing Director of the respondent sent a reply to the Regional Labour Commissioner dealing with the contentions made by the Union in its letter of June 22, , 1967. The Managing Director contended that no industrial dispute existed or was apprehended and that the Conciliation officer had, therefore, no jurisdiction under the Act to hold any proceedings. In the order dated April 30, 1970, of the Industrial Tribunal-cum-Labour Court, Jabalpur, reference has been made to an affidavit which was filed on behalf of the workers for the purpose of securing an interim award. We have, looked at the affidavit for ourselves and are in agreement with the view expressed by the Tribunal tha t there is a clear and unequivocal admission on the part of the workers in that affidavit to the effect that the business was in fact closed by the respondent. The High Court has also referred to a statement dated June 16, 1967, in which it was stat ed on behalf of the workmen that since the establishment had already closed down, there was no necessity for making submissions on the point relating to the reduction in the number of employees and revision of thed counsel for t he appellant relies upon a judgment of this Court in The Management of Express Newspapers Ltd. v. Workers and Staff Employed under it and others, ([1963] 3 S.C.R. 540, 548) in which it was observed that if, in fact and in substance, the closure of the business is a lock out and the business has been apparently closed for the purpose of disguising a lock out and a dispute is raised in respect of such a closure it would be an industrial dispute which an Industrial Tribunal is competent to deal. There , can, with respect, be no quarrel with this proposition but the true question which arises for consideration is whether in the instant case there was any dispute at all, whether there was in fact a closure or whether the management purported to close the business as a cloak or disguise for what in fact and substance was a lock out. As we have shown earlier no such dispute was ever raised, the limited dispute which was raised by the appellant being whether the closure of the business was effected for a proper and a justifiable reasonThe appellants counsel also drew our attention to the definition of closure in section 2(8) of the State Act according to which closure to the extent material , means the closing of any place or part of a place of employment or the total or partial suspension of work by an employer or the total or partial refusal by an employer to continue to employ persons employed by him whether such closing, suspension or refusal is or is not in consequence of an industrial dispute.It may perhaps be that the concept of closure in the State Act is wider than what is commonly understood by that expression but we do not appreciate how the circumstance that even a partial closure of a business is closure within the meaning of the State Act can assist the appellant in its contention that under the terms of the present references, the Tribunals were entitled to enter into the question as to the fact of the closure. In this connection the provisions of section 82 of the state Act, to which Mr. Tarkunde appearing on behalf of the respondent drew our attention, are very significant. That section provides that the State Government may make a reference to a Labour Court or the Industrial Court for a declaration whether any proposed strike, lock- out, closure or stoppage will be illegal. If ever it was the case of the appellant that there was in fact no closure and there was really an illegal lock-out, the reference would have been asked for and made not under section 51 under which it was made, but under section 82.We are, therefore, of the view that the High Court was right in coming to the conclusion that the two Tribuna ls had no jurisdiction to go behind the references and inquire into the question whether the closure of business, which was in fact effected" was decided upon for reasons which were proper and justifiable. The propriety of or justification for t he closure of a business, in fact and truly effected, cannot raise an industrial dispute as contemplated by the State and Central ActsIt is unnecessary to consider the second question as regards the payment of retrenchment compensation a nd we will, therefore, express no opinion as to whether the Tribunals had jurisdiction to go into that question. Happily, the parties have arrived at a settlement on that question under which, the respondent agrees to fix within a period of six months from today the retrenchment compensation payable to the retrenched workers in accordance with the provisions of section 25FFF of the Central Act, namely,the Industrial Disputes Act, 1947, without the aid of the proviso t o that section. After the retrenchment compensation is so fixed, a copy of the decision fixing the compensation payable to each of the workers will be sent by the respondent to the appellant Union. The workers or their legal representatives, as the case may be, will then be entitled to receive the retrenchment compensation from the respondent, which agrees to pay the same to them. The respondent will be entitled to set off of the amounts of retrenchment compensation already paid to the workers against the amounts found due to them under this settlement. On receiving the retrenchment compensation the workers concerned shall withdraw the applications, if any, filed by them for relief in that behalf | 0 | 2,715 | 1,531 | ### Instruction:
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the opinion that the closure was not for business reasons but was a malafide decision taken in order to drive the Union out of existence and to cheat the workers of their lawful dues. 9. On June 28, 1967, the Managing Director of the respondent sent a reply to the Regional Labour Commissioner dealing with the contentions made by the Union in its letter of June 22, , 1967. The Managing Director contended that no industrial dispute existed or was apprehended and that the Conciliation officer had, therefore, no jurisdiction under the Act to hold any proceedings. In the order dated April 30, 1970, of the Industrial Tribunal-cum-Labour Court, Jabalpur, reference has been made to an affidavit which was filed on behalf of the workers for the purpose of securing an interim award. We have, looked at the affidavit for ourselves and are in agreement with the view expressed by the Tribunal tha t there is a clear and unequivocal admission on the part of the workers in that affidavit to the effect that the business was in fact closed by the respondent. The High Court has also referred to a statement dated June 16, 1967, in which it was stat ed on behalf of the workmen that since the establishment had already closed down, there was no necessity for making submissions on the point relating to the reduction in the number of employees and revision of the workload.Learned counsel for t he appellant relies upon a judgment of this Court in The Management of Express Newspapers Ltd. v. Workers and Staff Employed under it and others, ([1963] 3 S.C.R. 540, 548) in which it was observed that if, in fact and in substance, the closure of the business is a lock out and the business has been apparently closed for the purpose of disguising a lock out and a dispute is raised in respect of such a closure it would be an industrial dispute which an Industrial Tribunal is competent to deal with. There , can, with respect, be no quarrel with this proposition but the true question which arises for consideration is whether in the instant case there was any dispute at all, whether there was in fact a closure or whether the management purported to close the business as a cloak or disguise for what in fact and substance was a lock out. As we have shown earlier no such dispute was ever raised, the limited dispute which was raised by the appellant being whether the closure of the business was effected for a proper and a justifiable reason. 10. The appellants counsel also drew our attention to the definition of closure in section 2(8) of the State Act according to which closure to the extent material , means the closing of any place or part of a place of employment or the total or partial suspension of work by an employer or the total or partial refusal by an employer to continue to employ persons employed by him whether such closing, suspension or refusal is or is not in consequence of an industrial dispute. It may perhaps be that the concept of closure in the State Act is wider than what is commonly understood by that expression but we do not appreciate how the circumstance that even a partial closure of a business is closure within the meaning of the State Act can assist the appellant in its contention that under the terms of the present references, the Tribunals were entitled to enter into the question as to the fact of the closure. In this connection the provisions of section 82 of the state Act, to which Mr. Tarkunde appearing on behalf of the respondent drew our attention, are very significant. That section provides that the State Government may make a reference to a Labour Court or the Industrial Court for a declaration whether any proposed strike, lock- out, closure or stoppage will be illegal. If ever it was the case of the appellant that there was in fact no closure and there was really an illegal lock-out, the reference would have been asked for and made not under section 51 under which it was made, but under section 82.We are, therefore, of the view that the High Court was right in coming to the conclusion that the two Tribuna ls had no jurisdiction to go behind the references and inquire into the question whether the closure of business, which was in fact effected" was decided upon for reasons which were proper and justifiable. The propriety of or justification for t he closure of a business, in fact and truly effected, cannot raise an industrial dispute as contemplated by the State and Central Acts. 11. It is unnecessary to consider the second question as regards the payment of retrenchment compensation a nd we will, therefore, express no opinion as to whether the Tribunals had jurisdiction to go into that question. Happily, the parties have arrived at a settlement on that question under which, the respondent agrees to fix within a period of six months from today the retrenchment compensation payable to the retrenched workers in accordance with the provisions of section 25FFF of the Central Act, namely, the Industrial Disputes Act, 1947, without the aid of the proviso t o that section. After the retrenchment compensation is so fixed, a copy of the decision fixing the compensation payable to each of the workers will be sent by the respondent to the appellant Union. The workers or their legal representatives, as the case may be, will then be entitled to receive the retrenchment compensation from the respondent, which agrees to pay the same to them. The respondent will be entitled to set off of the amounts of retrenchment compensation already paid to the workers against the amounts found due to them under this settlement. On receiving the retrenchment compensation the workers concerned shall withdraw the applications, if any, filed by them for relief in that behalf. 12.
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paragraph which winds up by saying that the Union was of the opinion that the closure was not for business reasons but was a malafide decision taken in order to drive the Union out of existence and to cheat the workers of their lawful duesOn June 28, 1967, the Managing Director of the respondent sent a reply to the Regional Labour Commissioner dealing with the contentions made by the Union in its letter of June 22, , 1967. The Managing Director contended that no industrial dispute existed or was apprehended and that the Conciliation officer had, therefore, no jurisdiction under the Act to hold any proceedings. In the order dated April 30, 1970, of the Industrial Tribunal-cum-Labour Court, Jabalpur, reference has been made to an affidavit which was filed on behalf of the workers for the purpose of securing an interim award. We have, looked at the affidavit for ourselves and are in agreement with the view expressed by the Tribunal tha t there is a clear and unequivocal admission on the part of the workers in that affidavit to the effect that the business was in fact closed by the respondent. The High Court has also referred to a statement dated June 16, 1967, in which it was stat ed on behalf of the workmen that since the establishment had already closed down, there was no necessity for making submissions on the point relating to the reduction in the number of employees and revision of thed counsel for t he appellant relies upon a judgment of this Court in The Management of Express Newspapers Ltd. v. Workers and Staff Employed under it and others, ([1963] 3 S.C.R. 540, 548) in which it was observed that if, in fact and in substance, the closure of the business is a lock out and the business has been apparently closed for the purpose of disguising a lock out and a dispute is raised in respect of such a closure it would be an industrial dispute which an Industrial Tribunal is competent to deal. There , can, with respect, be no quarrel with this proposition but the true question which arises for consideration is whether in the instant case there was any dispute at all, whether there was in fact a closure or whether the management purported to close the business as a cloak or disguise for what in fact and substance was a lock out. As we have shown earlier no such dispute was ever raised, the limited dispute which was raised by the appellant being whether the closure of the business was effected for a proper and a justifiable reasonThe appellants counsel also drew our attention to the definition of closure in section 2(8) of the State Act according to which closure to the extent material , means the closing of any place or part of a place of employment or the total or partial suspension of work by an employer or the total or partial refusal by an employer to continue to employ persons employed by him whether such closing, suspension or refusal is or is not in consequence of an industrial dispute.It may perhaps be that the concept of closure in the State Act is wider than what is commonly understood by that expression but we do not appreciate how the circumstance that even a partial closure of a business is closure within the meaning of the State Act can assist the appellant in its contention that under the terms of the present references, the Tribunals were entitled to enter into the question as to the fact of the closure. In this connection the provisions of section 82 of the state Act, to which Mr. Tarkunde appearing on behalf of the respondent drew our attention, are very significant. That section provides that the State Government may make a reference to a Labour Court or the Industrial Court for a declaration whether any proposed strike, lock- out, closure or stoppage will be illegal. If ever it was the case of the appellant that there was in fact no closure and there was really an illegal lock-out, the reference would have been asked for and made not under section 51 under which it was made, but under section 82.We are, therefore, of the view that the High Court was right in coming to the conclusion that the two Tribuna ls had no jurisdiction to go behind the references and inquire into the question whether the closure of business, which was in fact effected" was decided upon for reasons which were proper and justifiable. The propriety of or justification for t he closure of a business, in fact and truly effected, cannot raise an industrial dispute as contemplated by the State and Central ActsIt is unnecessary to consider the second question as regards the payment of retrenchment compensation a nd we will, therefore, express no opinion as to whether the Tribunals had jurisdiction to go into that question. Happily, the parties have arrived at a settlement on that question under which, the respondent agrees to fix within a period of six months from today the retrenchment compensation payable to the retrenched workers in accordance with the provisions of section 25FFF of the Central Act, namely,the Industrial Disputes Act, 1947, without the aid of the proviso t o that section. After the retrenchment compensation is so fixed, a copy of the decision fixing the compensation payable to each of the workers will be sent by the respondent to the appellant Union. The workers or their legal representatives, as the case may be, will then be entitled to receive the retrenchment compensation from the respondent, which agrees to pay the same to them. The respondent will be entitled to set off of the amounts of retrenchment compensation already paid to the workers against the amounts found due to them under this settlement. On receiving the retrenchment compensation the workers concerned shall withdraw the applications, if any, filed by them for relief in that behalf
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The State of Madhya Pradesh & Ors Vs. Ashish Awasthi And Ors | M.R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 12.12.2018 passed by the Division Bench of the High Court of Madhya Pradesh Bench at Jabalpur in WA No. 1559 of 2018 by which the Division Bench of the High Court has allowed the said appeal and has quashed and set aside the judgment and order passed by the learned Single Judge of the High Court and has directed that the appellants herein – original respondents to consider the claim of the respondent herein – original writ petitioner for a compassionate appointment, the State of Madhya Pradesh has preferred the present appeal. 2. That the respondents father was working on the post of Chowkidar in the office of Assistant Engineer, Public Health Engineer, District Tikamgarh, Madhya Pradesh. That the father of the respondent died on 08.10.2015. That at the time of death the deceased employee was serving as a work charge and he was paid salary from the contingency fund. That the respondent was provided a compensatory amount of Rs. 2 lakhs as per the policy prevalent at the time of death of the deceased employee, i.e., policy dated 29.09.2014. That after the death of the deceased employee, the policy for appointment on compassionate ground came to be amended vide circular dated 31.08.2016 and it was provided that even in case of death of the employee working on work charge, his one of the heirs/dependents shall be eligible for the appointment on compassionate ground. 2.1 The respondent filed a writ petition before the High Court, which came to be disposed of by the learned Single Judge with a direction to the appellants to decide the representation preferred by the respondent in accordance with law. That thereafter the respondent filed an application for compassionate appointment and the same came to be rejected vide order dated 15.03.2017 on the ground that the policy/circular dated 31.08.2016 shall be applicable prospectively w.e.f. 22.12.2016 and as the deceased employee died on 08.10.2015, i.e., prior to the amended policy, the respondent shall not be entitled to any appointment on compassionate ground. That thereafter the respondent filed a fresh petition before the High Court being Writ Petition No.10903 of 2017. The learned Single Judge dismissed the said writ petition observing that considering the policy prevalent at the time of the death of the deceased work charge employee, his dependents/heirs shall not be entitled to appointment on compassionate ground and the subsequent policy/circular dated 31.08.2016 shall not be made applicable. The respondent preferred an appeal before the Division Bench being WA No.1559 of 2018 and relying upon the decision of the Full Bench of the Madhya Pradesh High Court in the case of Bank of Maharashtra Vs. Manoj Kumar Deharia reported in 2010 (4) MPHT 18 , the Division Bench has allowed the appeal and has directed the appellants to consider the case of the respondent for appointment on compassionate ground relying upon and/or considering the subsequent policy/circular dated 31.08.2016. 2.2 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the Division Bench of the High Court, the State of Madhya Pradesh has preferred the present appeal. 3. We have heard the learned counsel for the respective parties at length. 4. The deceased employee died on 08.10.2015. At the time of death, he was working as a work charge employee, who was paid the salary from the contingency fund. As per the policy/circular prevalent at the time of the death of the deceased employee, i.e., policy/circular No.C-3- 12/2013/1-3 dated 29.09.2014 in case of death of the employee working on work charge, his dependents/heirs were not entitled to the appointment on compassionate ground and were entitled to Rs. 2 lakhs as compensatory amount. Subsequently, the policy came to be amended vide circular dated 31.08.2016, under which even in the case of death of the work charge employee, his heirs/dependents will be entitled to the appointment on compassionate ground. Relying upon the subsequent circular/policy dated 31.08.2016, the Division Bench of the High Court has directed the appellants to consider the case of the respondent for appointment on compassionate ground. As per the settled preposition of law laid down by this Court for appointment on compassionate ground, the policy prevalent at the time of death of the deceased employee only is required to be considered and not the subsequent policy. 4.1 In the case of Indian Bank and Ors. Vs. Promila and Anr., (2020) 2 SCC 729, it is observed and held that claim for compassionate appointment must be decided only on the basis of relevant scheme prevalent on date of demise of the employee and subsequent scheme cannot be looked into. Similar view has been taken by this Court in the case of State of Madhya Pradesh and Ors. Vs. Amit Shrivas, (2020) 10 SCC 496 . It is required to be noted that in the case of Amit Shrivas (supra) the very scheme applicable in the present case was under consideration and it was held that the scheme prevalent on the date of death of the deceased employee is only to be considered. In that view of the matter, the impugned judgment and order passed by the Division Bench is unsustainable and deserves to be quashed and set aside. 4.2 The submission on behalf of the respondent that after the impugned judgment and order passed by the High Court, the respondent has been appointed and therefore his appointment may not be disturbed, deserves rejection. Once the judgment and order passed by the Division bench under which respondent is appointed is quashed and set aside, necessary consequences shall follow and the appointment of the respondent, which was pursuant to the impugned judgment and order passed by the Division Bench of the High Court cannot be protected. | 1[ds]4. The deceased employee died on 08.10.2015. At the time of death, he was working as a work charge employee, who was paid the salary from the contingency fund. As per the policy/circular prevalent at the time of the death of the deceased employee, i.e., policy/circular No.C-3- 12/2013/1-3 dated 29.09.2014 in case of death of the employee working on work charge, his dependents/heirs were not entitled to the appointment on compassionate ground and were entitled to Rs. 2 lakhs as compensatory amount. Subsequently, the policy came to be amended vide circular dated 31.08.2016, under which even in the case of death of the work charge employee, his heirs/dependents will be entitled to the appointment on compassionate ground. Relying upon the subsequent circular/policy dated 31.08.2016, the Division Bench of the High Court has directed the appellants to consider the case of the respondent for appointment on compassionate ground. As per the settled preposition of law laid down by this Court for appointment on compassionate ground, the policy prevalent at the time of death of the deceased employee only is required to be considered and not the subsequent policy.4.1 In the case of Indian Bank and Ors. Vs. Promila and Anr., (2020) 2 SCC 729, it is observed and held that claim for compassionate appointment must be decided only on the basis of relevant scheme prevalent on date of demise of the employee and subsequent scheme cannot be looked into. Similar view has been taken by this Court in the case of State of Madhya Pradesh and Ors. Vs. Amit Shrivas, (2020) 10 SCC 496 . It is required to be noted that in the case of Amit Shrivas (supra) the very scheme applicable in the present case was under consideration and it was held that the scheme prevalent on the date of death of the deceased employee is only to be considered. In that view of the matter, the impugned judgment and order passed by the Division Bench is unsustainable and deserves to be quashed and set aside.4.2 The submission on behalf of the respondent that after the impugned judgment and order passed by the High Court, the respondent has been appointed and therefore his appointment may not be disturbed, deserves rejection. Once the judgment and order passed by the Division bench under which respondent is appointed is quashed and set aside, necessary consequences shall follow and the appointment of the respondent, which was pursuant to the impugned judgment and order passed by the Division Bench of the High Court cannot be protected. | 1 | 1,043 | 465 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
M.R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 12.12.2018 passed by the Division Bench of the High Court of Madhya Pradesh Bench at Jabalpur in WA No. 1559 of 2018 by which the Division Bench of the High Court has allowed the said appeal and has quashed and set aside the judgment and order passed by the learned Single Judge of the High Court and has directed that the appellants herein – original respondents to consider the claim of the respondent herein – original writ petitioner for a compassionate appointment, the State of Madhya Pradesh has preferred the present appeal. 2. That the respondents father was working on the post of Chowkidar in the office of Assistant Engineer, Public Health Engineer, District Tikamgarh, Madhya Pradesh. That the father of the respondent died on 08.10.2015. That at the time of death the deceased employee was serving as a work charge and he was paid salary from the contingency fund. That the respondent was provided a compensatory amount of Rs. 2 lakhs as per the policy prevalent at the time of death of the deceased employee, i.e., policy dated 29.09.2014. That after the death of the deceased employee, the policy for appointment on compassionate ground came to be amended vide circular dated 31.08.2016 and it was provided that even in case of death of the employee working on work charge, his one of the heirs/dependents shall be eligible for the appointment on compassionate ground. 2.1 The respondent filed a writ petition before the High Court, which came to be disposed of by the learned Single Judge with a direction to the appellants to decide the representation preferred by the respondent in accordance with law. That thereafter the respondent filed an application for compassionate appointment and the same came to be rejected vide order dated 15.03.2017 on the ground that the policy/circular dated 31.08.2016 shall be applicable prospectively w.e.f. 22.12.2016 and as the deceased employee died on 08.10.2015, i.e., prior to the amended policy, the respondent shall not be entitled to any appointment on compassionate ground. That thereafter the respondent filed a fresh petition before the High Court being Writ Petition No.10903 of 2017. The learned Single Judge dismissed the said writ petition observing that considering the policy prevalent at the time of the death of the deceased work charge employee, his dependents/heirs shall not be entitled to appointment on compassionate ground and the subsequent policy/circular dated 31.08.2016 shall not be made applicable. The respondent preferred an appeal before the Division Bench being WA No.1559 of 2018 and relying upon the decision of the Full Bench of the Madhya Pradesh High Court in the case of Bank of Maharashtra Vs. Manoj Kumar Deharia reported in 2010 (4) MPHT 18 , the Division Bench has allowed the appeal and has directed the appellants to consider the case of the respondent for appointment on compassionate ground relying upon and/or considering the subsequent policy/circular dated 31.08.2016. 2.2 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the Division Bench of the High Court, the State of Madhya Pradesh has preferred the present appeal. 3. We have heard the learned counsel for the respective parties at length. 4. The deceased employee died on 08.10.2015. At the time of death, he was working as a work charge employee, who was paid the salary from the contingency fund. As per the policy/circular prevalent at the time of the death of the deceased employee, i.e., policy/circular No.C-3- 12/2013/1-3 dated 29.09.2014 in case of death of the employee working on work charge, his dependents/heirs were not entitled to the appointment on compassionate ground and were entitled to Rs. 2 lakhs as compensatory amount. Subsequently, the policy came to be amended vide circular dated 31.08.2016, under which even in the case of death of the work charge employee, his heirs/dependents will be entitled to the appointment on compassionate ground. Relying upon the subsequent circular/policy dated 31.08.2016, the Division Bench of the High Court has directed the appellants to consider the case of the respondent for appointment on compassionate ground. As per the settled preposition of law laid down by this Court for appointment on compassionate ground, the policy prevalent at the time of death of the deceased employee only is required to be considered and not the subsequent policy. 4.1 In the case of Indian Bank and Ors. Vs. Promila and Anr., (2020) 2 SCC 729, it is observed and held that claim for compassionate appointment must be decided only on the basis of relevant scheme prevalent on date of demise of the employee and subsequent scheme cannot be looked into. Similar view has been taken by this Court in the case of State of Madhya Pradesh and Ors. Vs. Amit Shrivas, (2020) 10 SCC 496 . It is required to be noted that in the case of Amit Shrivas (supra) the very scheme applicable in the present case was under consideration and it was held that the scheme prevalent on the date of death of the deceased employee is only to be considered. In that view of the matter, the impugned judgment and order passed by the Division Bench is unsustainable and deserves to be quashed and set aside. 4.2 The submission on behalf of the respondent that after the impugned judgment and order passed by the High Court, the respondent has been appointed and therefore his appointment may not be disturbed, deserves rejection. Once the judgment and order passed by the Division bench under which respondent is appointed is quashed and set aside, necessary consequences shall follow and the appointment of the respondent, which was pursuant to the impugned judgment and order passed by the Division Bench of the High Court cannot be protected.
### Response:
1
### Explanation:
4. The deceased employee died on 08.10.2015. At the time of death, he was working as a work charge employee, who was paid the salary from the contingency fund. As per the policy/circular prevalent at the time of the death of the deceased employee, i.e., policy/circular No.C-3- 12/2013/1-3 dated 29.09.2014 in case of death of the employee working on work charge, his dependents/heirs were not entitled to the appointment on compassionate ground and were entitled to Rs. 2 lakhs as compensatory amount. Subsequently, the policy came to be amended vide circular dated 31.08.2016, under which even in the case of death of the work charge employee, his heirs/dependents will be entitled to the appointment on compassionate ground. Relying upon the subsequent circular/policy dated 31.08.2016, the Division Bench of the High Court has directed the appellants to consider the case of the respondent for appointment on compassionate ground. As per the settled preposition of law laid down by this Court for appointment on compassionate ground, the policy prevalent at the time of death of the deceased employee only is required to be considered and not the subsequent policy.4.1 In the case of Indian Bank and Ors. Vs. Promila and Anr., (2020) 2 SCC 729, it is observed and held that claim for compassionate appointment must be decided only on the basis of relevant scheme prevalent on date of demise of the employee and subsequent scheme cannot be looked into. Similar view has been taken by this Court in the case of State of Madhya Pradesh and Ors. Vs. Amit Shrivas, (2020) 10 SCC 496 . It is required to be noted that in the case of Amit Shrivas (supra) the very scheme applicable in the present case was under consideration and it was held that the scheme prevalent on the date of death of the deceased employee is only to be considered. In that view of the matter, the impugned judgment and order passed by the Division Bench is unsustainable and deserves to be quashed and set aside.4.2 The submission on behalf of the respondent that after the impugned judgment and order passed by the High Court, the respondent has been appointed and therefore his appointment may not be disturbed, deserves rejection. Once the judgment and order passed by the Division bench under which respondent is appointed is quashed and set aside, necessary consequences shall follow and the appointment of the respondent, which was pursuant to the impugned judgment and order passed by the Division Bench of the High Court cannot be protected.
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S. P. Jinadathappa Vs. R. P. Sharma And Others | Controller, is an unsuitable tenant:5. The petitioner does not contend that the provision in so far as it allows the Controller to select as a tenant a Government, local authority, public institution or any of the officers mentioned, imposes any unreasonable restriction on the right to property. As we understood learned counsel for the petitioner, it was conceded that selection of such tenant would constitute a public purpose and the restriction thereby imposed, would be reasonable. It would, therefore, appear that it is not contended that the selection of a tenant by the Controller would by itself amount to imposing an unreasonable restriction on the right to property. We do not think that such a contention, if made, would have been well founded. It is clear that the Act deals with houses which are vacant. It does not deprive an owner of his right to live in his own house. It provides for vacant houses not needed for use of the owner being made available for the use of others who are without accommodation. The Act was necessary because of the scarcity of housing, It was, therefore, passed to regulate the letting of houses and to control rent and also to prevent unreasonable eviction: see the preamble to the Act.6. Does the Act then by leaving it to the Controller to select any person other than a Government, local authority, public institution or an officer of any of these as the tenant, impose an unreasonable restriction on the right to property? We do not think it does so. If the Controller could validly choose a Government, a local authority or any institution -which as we have said is not disputed-it can make no difference that instead of such a tenant the Controller chooses a private individual as a tenant. The idea of this provision is that people in need should be found accommodation. Persons in need of accommodation are the public and, therefore, serving their need, would be serving a public purpose. An individual would be a member of the public and as the accommodation available can be let out to one, a restriction caused by selection of a member of the public would be one in the interest of the general public. Such a restriction is furthermore not unreasonable. It is enforced only when the owner does not want the house for his own use. It can then make no reasonable difference to the owner if a private individual is chosen as the tenant. The Act further makes ample provision to see that the tenant chosen is suitable. By providing the appeal to the District Judge and a right to move the High Court in revision, full safeguard has been given to secure that an unsuitable person is not foisted on an owner as his tenant.7. It is true that the Act does not defined who would be a suitable person but we do not think that a definition was required. Any man of experience would know who is a suitable tenant. Further, the owner has been given the right to have the suitability of the tenant chosen examined by the highest court. In the explanation to S. 3(3)(a) certain persons have been declared to be unsuitable tenants. We are unable to accept the contention of the learned counsel for the petitioner that the result of this explanation is that all others are suitable. The explanation only shows that the persons coming within the description are unsuitable. As to whether others would be suitable or not would have to be decided on the merits of each. The decision as to the suitability of a tenant is not to be controlled by the explanation at all except to the extent of making certain persons unsuitable as tenants and taking it out of the discretion of the authority concerned to go into the question of their suitability.8. If the Act had left it to the house owner to choose a tenant, then there was every likehood of its purpose being defeated. It would be easy for the owner to make secret arrangements for his own gain in creating a tenancy. The tenant would obviously be in a disadvantageous situation in view of the scarcity of housing, in the matter of bargaining for the house. He could easily be made to yield to the terms imposed by the owner who has a much superior bargaining situation. If scope was left for this kind of thing to happen, then the entire object of the Act would have been defeated. The Act intends to avoid this situation and hence the provision for a power in the Controller to select a tenant for the owner.9. Neither do we think that any objection to this provision can be based on Art. 14 of the Constitution on the ground that it provided no guidance as to how a tenant is to be chosen and so enabled the authority concerned to make an arbitrary choice. This contention is not in any event open to the petitioner, an owner, for the provision does not enable any discrimination being made between one owner and another. If a tenant had challenged the validity of the provision relying on Art. 14, which is not the case here, we do not think that challenge would have been of substance. There is, in our view, ample guidance given to the authority as to how to choose a tenant. The tenant has first to be suitable. All persons are entitled to apply for being selected as tenants and so all have equal chance to get the house. The choice will have to be made from amongst the applicants and that choice will depend on an examination of the comparative merits of their claims. Further, the owner has a right to have his views in the matter being given due consideration by the authority selecting the tenant. Again, the ultimate decision would be a judicial decision, and if required, of the highest tribunal in the State. | 0[ds]We do not think that such a contention, if made, would have been well founded. It is clear that the Act deals with houses which are vacant. It does not deprive an owner of his right to live in his own house. It provides for vacant houses not needed for use of the owner being made available for the use of others who are without accommodation. The Act was necessary because of the scarcity of housing, It was, therefore, passed to regulate the letting of houses and to control rent and also to prevent unreasonable eviction: see the preamble to the Act.If the Act had left it to the house owner to choose a tenant, then there was every likehood of its purpose being defeated. It would be easy for the owner to make secret arrangements for his own gain in creating a tenancy. The tenant would obviously be in a disadvantageous situation in view of the scarcity of housing, in the matter of bargaining for the house. He could easily be made to yield to the terms imposed by the owner who has a much superior bargaining situation. If scope was left for this kind of thing to happen, then the entire object of the Act would have been defeated. The Act intends to avoid this situation and hence the provision for a power in the Controller to select a tenant for the owner.9. Neither do we think that any objection to this provision can be based on Art. 14 of the Constitution on the ground that it provided no guidance as to how a tenant is to be chosen and so enabled the authority concerned to make an arbitrary choice. This contention is not in any event open to the petitioner, an owner, for the provision does not enable any discrimination being made between one owner and another. If a tenant had challenged the validity of the provision relying on Art. 14, which is not the case here, we do not think that challenge would have been of substance. There is, in our view, ample guidance given to the authority as to how to choose a tenant. The tenant has first to be suitable. All persons are entitled to apply for being selected as tenants and so all have equal chance to get the house. The choice will have to be made from amongst the applicants and that choice will depend on an examination of the comparative merits of their claims. Further, the owner has a right to have his views in the matter being given due consideration by the authority selecting the tenant. Again, the ultimate decision would be a judicial decision, and if required, of the highest tribunal in the State. | 0 | 1,877 | 499 | ### 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:
Controller, is an unsuitable tenant:5. The petitioner does not contend that the provision in so far as it allows the Controller to select as a tenant a Government, local authority, public institution or any of the officers mentioned, imposes any unreasonable restriction on the right to property. As we understood learned counsel for the petitioner, it was conceded that selection of such tenant would constitute a public purpose and the restriction thereby imposed, would be reasonable. It would, therefore, appear that it is not contended that the selection of a tenant by the Controller would by itself amount to imposing an unreasonable restriction on the right to property. We do not think that such a contention, if made, would have been well founded. It is clear that the Act deals with houses which are vacant. It does not deprive an owner of his right to live in his own house. It provides for vacant houses not needed for use of the owner being made available for the use of others who are without accommodation. The Act was necessary because of the scarcity of housing, It was, therefore, passed to regulate the letting of houses and to control rent and also to prevent unreasonable eviction: see the preamble to the Act.6. Does the Act then by leaving it to the Controller to select any person other than a Government, local authority, public institution or an officer of any of these as the tenant, impose an unreasonable restriction on the right to property? We do not think it does so. If the Controller could validly choose a Government, a local authority or any institution -which as we have said is not disputed-it can make no difference that instead of such a tenant the Controller chooses a private individual as a tenant. The idea of this provision is that people in need should be found accommodation. Persons in need of accommodation are the public and, therefore, serving their need, would be serving a public purpose. An individual would be a member of the public and as the accommodation available can be let out to one, a restriction caused by selection of a member of the public would be one in the interest of the general public. Such a restriction is furthermore not unreasonable. It is enforced only when the owner does not want the house for his own use. It can then make no reasonable difference to the owner if a private individual is chosen as the tenant. The Act further makes ample provision to see that the tenant chosen is suitable. By providing the appeal to the District Judge and a right to move the High Court in revision, full safeguard has been given to secure that an unsuitable person is not foisted on an owner as his tenant.7. It is true that the Act does not defined who would be a suitable person but we do not think that a definition was required. Any man of experience would know who is a suitable tenant. Further, the owner has been given the right to have the suitability of the tenant chosen examined by the highest court. In the explanation to S. 3(3)(a) certain persons have been declared to be unsuitable tenants. We are unable to accept the contention of the learned counsel for the petitioner that the result of this explanation is that all others are suitable. The explanation only shows that the persons coming within the description are unsuitable. As to whether others would be suitable or not would have to be decided on the merits of each. The decision as to the suitability of a tenant is not to be controlled by the explanation at all except to the extent of making certain persons unsuitable as tenants and taking it out of the discretion of the authority concerned to go into the question of their suitability.8. If the Act had left it to the house owner to choose a tenant, then there was every likehood of its purpose being defeated. It would be easy for the owner to make secret arrangements for his own gain in creating a tenancy. The tenant would obviously be in a disadvantageous situation in view of the scarcity of housing, in the matter of bargaining for the house. He could easily be made to yield to the terms imposed by the owner who has a much superior bargaining situation. If scope was left for this kind of thing to happen, then the entire object of the Act would have been defeated. The Act intends to avoid this situation and hence the provision for a power in the Controller to select a tenant for the owner.9. Neither do we think that any objection to this provision can be based on Art. 14 of the Constitution on the ground that it provided no guidance as to how a tenant is to be chosen and so enabled the authority concerned to make an arbitrary choice. This contention is not in any event open to the petitioner, an owner, for the provision does not enable any discrimination being made between one owner and another. If a tenant had challenged the validity of the provision relying on Art. 14, which is not the case here, we do not think that challenge would have been of substance. There is, in our view, ample guidance given to the authority as to how to choose a tenant. The tenant has first to be suitable. All persons are entitled to apply for being selected as tenants and so all have equal chance to get the house. The choice will have to be made from amongst the applicants and that choice will depend on an examination of the comparative merits of their claims. Further, the owner has a right to have his views in the matter being given due consideration by the authority selecting the tenant. Again, the ultimate decision would be a judicial decision, and if required, of the highest tribunal in the State.
### Response:
0
### Explanation:
We do not think that such a contention, if made, would have been well founded. It is clear that the Act deals with houses which are vacant. It does not deprive an owner of his right to live in his own house. It provides for vacant houses not needed for use of the owner being made available for the use of others who are without accommodation. The Act was necessary because of the scarcity of housing, It was, therefore, passed to regulate the letting of houses and to control rent and also to prevent unreasonable eviction: see the preamble to the Act.If the Act had left it to the house owner to choose a tenant, then there was every likehood of its purpose being defeated. It would be easy for the owner to make secret arrangements for his own gain in creating a tenancy. The tenant would obviously be in a disadvantageous situation in view of the scarcity of housing, in the matter of bargaining for the house. He could easily be made to yield to the terms imposed by the owner who has a much superior bargaining situation. If scope was left for this kind of thing to happen, then the entire object of the Act would have been defeated. The Act intends to avoid this situation and hence the provision for a power in the Controller to select a tenant for the owner.9. Neither do we think that any objection to this provision can be based on Art. 14 of the Constitution on the ground that it provided no guidance as to how a tenant is to be chosen and so enabled the authority concerned to make an arbitrary choice. This contention is not in any event open to the petitioner, an owner, for the provision does not enable any discrimination being made between one owner and another. If a tenant had challenged the validity of the provision relying on Art. 14, which is not the case here, we do not think that challenge would have been of substance. There is, in our view, ample guidance given to the authority as to how to choose a tenant. The tenant has first to be suitable. All persons are entitled to apply for being selected as tenants and so all have equal chance to get the house. The choice will have to be made from amongst the applicants and that choice will depend on an examination of the comparative merits of their claims. Further, the owner has a right to have his views in the matter being given due consideration by the authority selecting the tenant. Again, the ultimate decision would be a judicial decision, and if required, of the highest tribunal in the State.
|
State Of Madras And Another Vs. K.M. Rajagopalan | necessarily to be taken before the appointed day in order to facilitate a smooth transition, the legislative authorities concerned must be taken to have proceeded on a recognition of the factual situation as it then existed.For a similar approach in a similar situation see for instance Malojirao v. the State of Madhya Bharat, AIR 1954 SC 259 at p. 262 (F), where this Court held that Art. 385 of the Constitution proceeded on a recognition of the factual situation, at the time, relating to the matter involved. Even apart from this answer to the objection, the objection itself appears to be based on a misapprehension. It is true there is no clear evidence in the case that the order of termination of the service of the plaintiff was one made with the sanction of then Secretary of State.It may also be that the decision not to retain his services as and from 15-8-1947, was based on his past record as admitted in the written-statement and works serious hardships in view of his not having-had an opportunity to show cause. But it was an order to come into operation at the precise moment when the Indian Independence Act came into force. At that moment the Secretary of States concern with this matter was at an end.There is no reason to think that an order of this kind with the sanction of the Central Government, not purporting to exercise a power of termination of services, but acting on the the assumption implicit in the Viceroys announcement that the services would come to an automatic termination and intimating the decision of the appropriate Govt. not to retain the services of the plaintiff as and from 15-8-1947, is not within the competence of the very Government under whose service, the plaintiff wanted to serve.The very nature of the situation demanded the taking of such anticipatory decisions and the communication of the same to the person concerned, in order to become operative at the crucial moment of the transition of power. As regards the second objection, it appears to us that the contention as regards the inadmissibility of reference to the announcement of the viceroy and the action taken thereupon by the Central and the Provincial Governments, both in its general aspect as also with reference to individual cases like that of the plaintiff, is without any substance.The phrase "special orders or arrangements affecting his case" in Art. 7(1), India (Provisional Constitution) Order, 1947, can only refer to this and similar other material culminating in the orders and arrangements relating to the concerned individuals. That there were any other kind of special orders or arrangements contemplated by this provision concerning the Secretary of States services has not been suggested and it is clear there were none.That such previous material which led up to the particular legislative provision is admissible in evidence has been so held in "Ladore v. Bennett, 1939 AC 468 (G), which was held valid in Govindan Sellappah Nayar v. Punchi Banda Mudanayake, 1958 AC 514 at p. 528 (H).As pointed out by Lord Atkin in the case in 1939 AC 468 (G), at p. 477, such documents indicate the materials which can be taken to have been before the Governor-General when he passed the relevant legislative order.This material indicates quite clearly that while the initial option to continue or not in service was with the servant concerned, the final option to continue him or not to continue him was with the appropriate Government and that the special orders or arrangements contemplated were the action taken in pursuance of that find option.17. It was faintly suggested that the Viceroys announcement of 30-4-1947, was before His Majestys Government decided to advance the date of transfer of power by nearly a year and that the original announcement contemplated a treaty between the British Government and the future Dominion Government to regulate all these matters and that since no such treaty has in fact been entered into, the announcement was not admissible in evidence The fact that the transition of power took the form of legislation by the British Parliament and not of a regular treaty, between the two Governments in view of the changed circumstances is not a mater which can in any way effect the situation so far as it relates to the particular matter with which we are concerned.It is that very announcement that has been acted upon after the further announcement of 3-6-1947." This appears clearly from the fact that the circular letter of the Government of India to the various provincial Chief Secretaries referred to this very announcement and from the further fact that the letter which was sent to each and every individual civil servant was accompanied by a copy of the said announcement.18. It is clear, therefore, from the above discussion that apart from the fact that the Secretary of State and his services disappeared as from 15-8-1947, S. 10(2) Indian Independence Act and Art. 7(1), India (Provisional Constitution) Order proceeded on a clear and unequivocal recognition of the validity of the various special orders and the individual arrangements made and amount to an implicit statutory recognition of the principle of automatic termination of the services brought about by the political change.In our opinion, therefore, the services of the plaintiff came to an automatic termination on the emergence of Indian Dominion. The special order and arrangement affecting his case that was made in pursuance of the Viceroys announcement resulted in his service not being continued from and after 15-8-1947, and the plaintiff is not entitled to the declaration prayed for.19. The learned Judges of the High Court in coming to the conclusion they did, have, with respect, missedthe significance of the phrase "special orders or arrangements affecting his case" used in Art.7(1) India (Provisional Constitution) Order, 1947, and failed to appreciate that this was to be construed in the light of all the relevant events that proceeded, commencing from and following upon the announcement of the Viceroy dated 30-4-1947. | 1[ds]Thus the continuance of service was contemplated only in respect of such of the previous servants who intimated their desire for the continuance of their services and whose offer in this respect was accepted. While there fore, discontinuance of service was to be brought about by the option of either of the parties and on such discontinuance the servant was to become entitled to compensation, the continuance of the service was a matter which would depend upon the mutual consent of both, viz, the individual servant and the Governmentsome of the conditions of service previously governing these persons were continued by S. 10 (2) of the Indian Independence Act and the adaptation made thereunder which will be noticed presently. But apart from the question whether such continuance is available to all the previous members of the service - a matter which will be dealt with presently - the ultimate responsibility for the framing and maintenance of the conditions of service was no longer with the Secretary of State. It is also true that in respect of such of these civil servants whose services were retained by the new Dominion Government the service continued to be under the Crown (as shown by the adaptation of S. 240 Government of India Act). But this was only because in theory the new Government of India was still to be carried on in the name of Histhe essential structure of the Secretary of States services was altered and the basic foundation of the contractual -cum-statutory tenure of the servicethese various provisions together, it is clear that the guarantee of the prior conditions of service and the previous statutory safeguards relating to the disciplinary action are now confined to such as continue in service on and after the establishment of the Dominion to serve under the Crown, i.e., of the Government of the Dominion or of a Province, as the case may be. Who the persons are who fall within the category of persons "so continuing is clearly indicated by implication in Art. 7(1) India (Provisional Constitution) Order, 1947, already quoted,which says that any person who immediately before the appointed day is holding any civil post under the Crown in connection with the affairs of the Governor-General or Goveror-General in Council or of a province, shall, as from that day, be deemed to have been duly appointed to the corresponding post under the Crown in connection with the affairs of the Dominion of India or, as the case may be, of the Province.It is clear that the continuance contemplated by S.10 (2) (a), Indian Independence Act and by S. 240 (2) and S. 247, Government of India Act, as adapted, is the continuance impliedly brought about by this deeming provision in Art. 7(1) India (Piovisional Constitution) Order.But it has to be noted that this provision is specifically preceded by the qualifying phrase "subject to any general or special orders or arrangements affecting his case". Thus all persons who were previously holding civil posts are deemed to have been appointed and hence to continue in service, excepting those whose case is governed by " general or special orders or arrangements affecting his case."Now, omitting "general orders" which has no application in this case, there can be no reasonable doubt that the special orders or arrangements contemplated herein, in so far as the members of the secretary of States services are concerned, are the special orders or arrangements which followed on the Viceroys announcement dated 30-4-1947, in pursuance of the individual civil servants had been circularised and their wishes ascertained, and the Governments concerned had finally intimated their option not to invite the continuance of the service of particular individuals as has happened in the case of the presentis no reason to think that an order of this kind with the sanction of the Central Government, not purporting to exercise a power of termination of services, but acting on the the assumption implicit in the Viceroys announcement that the services would come to an automatic termination and intimating the decision of the appropriate Govt. not to retain the services of the plaintiff as and from 15-8-1947, is not within the competence of the very Government under whose service, the plaintiff wanted to serve.The very nature of the situation demanded the taking of such anticipatory decisions and the communication of the same to the person concerned, in order to become operative at the crucial moment of the transition of power. As regards the second objection, it appears to us that the contention as regards the inadmissibility of reference to the announcement of the viceroy and the action taken thereupon by the Central and the Provincial Governments, both in its general aspect as also with reference to individual cases like that of the plaintiff, is without any substance.The phrase "special orders or arrangements affecting his case" in Art. 7(1), India (Provisional Constitution) Order, 1947, can only refer to this and similar other material culminating in the orders and arrangements relating to the concerned individuals. That there were any other kind of special orders or arrangements contemplated by this provision concerning the Secretary of States services has not been suggested and it is clear there were none.It is clear, therefore, from the above discussion that apart from the fact that the Secretary of State and his services disappeared as from 15-8-1947, S. 10(2) Indian Independence Act and Art. 7(1), India (Provisional Constitution) Order proceeded on a clear and unequivocal recognition of the validity of the various special orders and the individual arrangements made and amount to an implicit statutory recognition of the principle of automatic termination of the services brought about by the political change.In our opinion, therefore, the services of the plaintiff came to an automatic termination on the emergence of Indian Dominion. The special order and arrangement affecting his case that was made in pursuance of the Viceroys announcement resulted in his service not being continued from and after 15-8-1947, and the plaintiff is not entitled to the declaration prayed for.The learned Judges of the High Court in coming to the conclusion they did, have, with respect, missedthe significance of the phrase "special orders or arrangements affecting his case" used in Art.7(1) India (Provisional Constitution) Order, 1947, and failed to appreciate that this was to be construed in the light of all the relevant events that proceeded, commencing from and following upon the announcement of the Viceroy dated 30-4-1947. | 1 | 9,930 | 1,192 | ### 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:
necessarily to be taken before the appointed day in order to facilitate a smooth transition, the legislative authorities concerned must be taken to have proceeded on a recognition of the factual situation as it then existed.For a similar approach in a similar situation see for instance Malojirao v. the State of Madhya Bharat, AIR 1954 SC 259 at p. 262 (F), where this Court held that Art. 385 of the Constitution proceeded on a recognition of the factual situation, at the time, relating to the matter involved. Even apart from this answer to the objection, the objection itself appears to be based on a misapprehension. It is true there is no clear evidence in the case that the order of termination of the service of the plaintiff was one made with the sanction of then Secretary of State.It may also be that the decision not to retain his services as and from 15-8-1947, was based on his past record as admitted in the written-statement and works serious hardships in view of his not having-had an opportunity to show cause. But it was an order to come into operation at the precise moment when the Indian Independence Act came into force. At that moment the Secretary of States concern with this matter was at an end.There is no reason to think that an order of this kind with the sanction of the Central Government, not purporting to exercise a power of termination of services, but acting on the the assumption implicit in the Viceroys announcement that the services would come to an automatic termination and intimating the decision of the appropriate Govt. not to retain the services of the plaintiff as and from 15-8-1947, is not within the competence of the very Government under whose service, the plaintiff wanted to serve.The very nature of the situation demanded the taking of such anticipatory decisions and the communication of the same to the person concerned, in order to become operative at the crucial moment of the transition of power. As regards the second objection, it appears to us that the contention as regards the inadmissibility of reference to the announcement of the viceroy and the action taken thereupon by the Central and the Provincial Governments, both in its general aspect as also with reference to individual cases like that of the plaintiff, is without any substance.The phrase "special orders or arrangements affecting his case" in Art. 7(1), India (Provisional Constitution) Order, 1947, can only refer to this and similar other material culminating in the orders and arrangements relating to the concerned individuals. That there were any other kind of special orders or arrangements contemplated by this provision concerning the Secretary of States services has not been suggested and it is clear there were none.That such previous material which led up to the particular legislative provision is admissible in evidence has been so held in "Ladore v. Bennett, 1939 AC 468 (G), which was held valid in Govindan Sellappah Nayar v. Punchi Banda Mudanayake, 1958 AC 514 at p. 528 (H).As pointed out by Lord Atkin in the case in 1939 AC 468 (G), at p. 477, such documents indicate the materials which can be taken to have been before the Governor-General when he passed the relevant legislative order.This material indicates quite clearly that while the initial option to continue or not in service was with the servant concerned, the final option to continue him or not to continue him was with the appropriate Government and that the special orders or arrangements contemplated were the action taken in pursuance of that find option.17. It was faintly suggested that the Viceroys announcement of 30-4-1947, was before His Majestys Government decided to advance the date of transfer of power by nearly a year and that the original announcement contemplated a treaty between the British Government and the future Dominion Government to regulate all these matters and that since no such treaty has in fact been entered into, the announcement was not admissible in evidence The fact that the transition of power took the form of legislation by the British Parliament and not of a regular treaty, between the two Governments in view of the changed circumstances is not a mater which can in any way effect the situation so far as it relates to the particular matter with which we are concerned.It is that very announcement that has been acted upon after the further announcement of 3-6-1947." This appears clearly from the fact that the circular letter of the Government of India to the various provincial Chief Secretaries referred to this very announcement and from the further fact that the letter which was sent to each and every individual civil servant was accompanied by a copy of the said announcement.18. It is clear, therefore, from the above discussion that apart from the fact that the Secretary of State and his services disappeared as from 15-8-1947, S. 10(2) Indian Independence Act and Art. 7(1), India (Provisional Constitution) Order proceeded on a clear and unequivocal recognition of the validity of the various special orders and the individual arrangements made and amount to an implicit statutory recognition of the principle of automatic termination of the services brought about by the political change.In our opinion, therefore, the services of the plaintiff came to an automatic termination on the emergence of Indian Dominion. The special order and arrangement affecting his case that was made in pursuance of the Viceroys announcement resulted in his service not being continued from and after 15-8-1947, and the plaintiff is not entitled to the declaration prayed for.19. The learned Judges of the High Court in coming to the conclusion they did, have, with respect, missedthe significance of the phrase "special orders or arrangements affecting his case" used in Art.7(1) India (Provisional Constitution) Order, 1947, and failed to appreciate that this was to be construed in the light of all the relevant events that proceeded, commencing from and following upon the announcement of the Viceroy dated 30-4-1947.
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a matter which would depend upon the mutual consent of both, viz, the individual servant and the Governmentsome of the conditions of service previously governing these persons were continued by S. 10 (2) of the Indian Independence Act and the adaptation made thereunder which will be noticed presently. But apart from the question whether such continuance is available to all the previous members of the service - a matter which will be dealt with presently - the ultimate responsibility for the framing and maintenance of the conditions of service was no longer with the Secretary of State. It is also true that in respect of such of these civil servants whose services were retained by the new Dominion Government the service continued to be under the Crown (as shown by the adaptation of S. 240 Government of India Act). But this was only because in theory the new Government of India was still to be carried on in the name of Histhe essential structure of the Secretary of States services was altered and the basic foundation of the contractual -cum-statutory tenure of the servicethese various provisions together, it is clear that the guarantee of the prior conditions of service and the previous statutory safeguards relating to the disciplinary action are now confined to such as continue in service on and after the establishment of the Dominion to serve under the Crown, i.e., of the Government of the Dominion or of a Province, as the case may be. Who the persons are who fall within the category of persons "so continuing is clearly indicated by implication in Art. 7(1) India (Provisional Constitution) Order, 1947, already quoted,which says that any person who immediately before the appointed day is holding any civil post under the Crown in connection with the affairs of the Governor-General or Goveror-General in Council or of a province, shall, as from that day, be deemed to have been duly appointed to the corresponding post under the Crown in connection with the affairs of the Dominion of India or, as the case may be, of the Province.It is clear that the continuance contemplated by S.10 (2) (a), Indian Independence Act and by S. 240 (2) and S. 247, Government of India Act, as adapted, is the continuance impliedly brought about by this deeming provision in Art. 7(1) India (Piovisional Constitution) Order.But it has to be noted that this provision is specifically preceded by the qualifying phrase "subject to any general or special orders or arrangements affecting his case". Thus all persons who were previously holding civil posts are deemed to have been appointed and hence to continue in service, excepting those whose case is governed by " general or special orders or arrangements affecting his case."Now, omitting "general orders" which has no application in this case, there can be no reasonable doubt that the special orders or arrangements contemplated herein, in so far as the members of the secretary of States services are concerned, are the special orders or arrangements which followed on the Viceroys announcement dated 30-4-1947, in pursuance of the individual civil servants had been circularised and their wishes ascertained, and the Governments concerned had finally intimated their option not to invite the continuance of the service of particular individuals as has happened in the case of the presentis no reason to think that an order of this kind with the sanction of the Central Government, not purporting to exercise a power of termination of services, but acting on the the assumption implicit in the Viceroys announcement that the services would come to an automatic termination and intimating the decision of the appropriate Govt. not to retain the services of the plaintiff as and from 15-8-1947, is not within the competence of the very Government under whose service, the plaintiff wanted to serve.The very nature of the situation demanded the taking of such anticipatory decisions and the communication of the same to the person concerned, in order to become operative at the crucial moment of the transition of power. As regards the second objection, it appears to us that the contention as regards the inadmissibility of reference to the announcement of the viceroy and the action taken thereupon by the Central and the Provincial Governments, both in its general aspect as also with reference to individual cases like that of the plaintiff, is without any substance.The phrase "special orders or arrangements affecting his case" in Art. 7(1), India (Provisional Constitution) Order, 1947, can only refer to this and similar other material culminating in the orders and arrangements relating to the concerned individuals. That there were any other kind of special orders or arrangements contemplated by this provision concerning the Secretary of States services has not been suggested and it is clear there were none.It is clear, therefore, from the above discussion that apart from the fact that the Secretary of State and his services disappeared as from 15-8-1947, S. 10(2) Indian Independence Act and Art. 7(1), India (Provisional Constitution) Order proceeded on a clear and unequivocal recognition of the validity of the various special orders and the individual arrangements made and amount to an implicit statutory recognition of the principle of automatic termination of the services brought about by the political change.In our opinion, therefore, the services of the plaintiff came to an automatic termination on the emergence of Indian Dominion. The special order and arrangement affecting his case that was made in pursuance of the Viceroys announcement resulted in his service not being continued from and after 15-8-1947, and the plaintiff is not entitled to the declaration prayed for.The learned Judges of the High Court in coming to the conclusion they did, have, with respect, missedthe significance of the phrase "special orders or arrangements affecting his case" used in Art.7(1) India (Provisional Constitution) Order, 1947, and failed to appreciate that this was to be construed in the light of all the relevant events that proceeded, commencing from and following upon the announcement of the Viceroy dated 30-4-1947.
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SHIVARAJ Vs. RAJENDRA | till the date of realization. The computation of compensation amount towards different heads arrived at by the tribunal is as follows: Compensation Heads Compensation amount 1. Pain and agony Rs. 85,000/- 2. Medical expenses Rs.1,42,324/- 3. Future medical expenses Rs. 50,000/- 4. Loss of income during laid up period Rs. 12,000/- 5. Rest, Nourishment and attendant charges Rs. 5,000/- 6. Loss of future income Rs.5,83,000/- 7. Conveyance Rs. 5,000/- 8. Loss of amenities & discomfort in life Rs. 20,000/- Total Rs.9,02,324/- 6. Feeling aggrieved by the said award, respondent No.2 (insurer) preferred an appeal being M.F.A. No.7662 of 2013 (MV) and the appellant preferred a separate appeal being M.F.A. No.9995 of 2013 (MV) for enhancement of the compensation amount. The High Court disposed of both these appeals by the impugned common judgment and order. The High Court broadly agreed with all other findings given by the tribunal but held that going by the stand taken by the appellant throughout the proceeding and the contemporaneous documents Exhs. P2 to P5, nowhere was it mentioned that the appellant was travelling in a trailer attached to the tractor. The evidence, however, is unambiguous that the appellant travelled in the tractor which was insured only for agriculture purposes and not for carrying goods. No additional insurance was taken in respect of the trailer rather presence of trailer is not shown or demonstrated in any of the documents and there was no evidence to demonstrate that the tractor was attached to a trailer. The tractor could accommodate only one person namely the driver of the tractor and none else. 7. On that finding, the High Court concluded that the appellant travelled in the tractor in breach of policy terms and conditions and therefore, the Insurance Company cannot be made liable to compensate the owner or the claimant. Accordingly, the appeal preferred by the respondent No.2 was allowed by the High Court and the insurer came to be absolved from the liability to pay compensation. While dealing with the appeal for enhancement of the compensation amount filed by the appellant, the High Court noted that the amount arrived at by the tribunal was just and proper and reckoned all the mandatory heads of compensation. As a result, it concluded that the appellant was not entitled for enhanced compensation. 8. The appellant has assailed the said common judgment and order of the High Court by these appeals. We have heard Ms. Kanika for the appellant and Ms. Rekha Chandra Sekhar for the respondent No.2 (insurer). Both the courts have accepted the case of the appellant that the motor accident occurred on 23 rd February, 2010 at about 8:30 a.m. in which the appellant suffered grievous injuries due to the rash and negligent driving of the driver of tractor. Further, both courts have determined permanent disability of 60% to the whole body suffered by the appellant in the accident. 9. The High Court, however, found in favour of respondent No.2 (insurer) that the appellant travelled in the tractor as a passenger which was in breach of the policy condition, for the tractor was insured for agriculture purposes and not for carrying goods. The evidence on record unambiguously pointed out that neither was any trailer insured nor was any trailer attached to the tractor. Thus, it would follow that the appellant travelled in the tractor as a passenger, even though the tractor could accommodate only one person namely the driver. As a result, the Insurance Company (respondent No.2) was not liable for the loss or injuries suffered by the appellant or to indemnify the owner of the tractor. That conclusion reached by the High Court, in our opinion, is unexceptionable in the fact situation of the present case. 10. At the same time, however, in the facts of the present case the High Court ought to have directed the Insurance Company to pay the compensation amount to the claimant (appellant) with liberty to recover the same from the tractor owner, in view of the consistent view taken in that regard by this Court in National Insurance Co. Ltd. Vs. Swarna Singh & Ors. 1 , Mangla Ram Vs. Oriental Insurance Co. Ltd. 2 , Rani & Ors. Vs. National Insurance Co. Ltd. & Ors. 3 and including Manuara Khatun and Others Vs. Rajesh Kumar Singh And Others. 4 In other words, the High Court should have partly allowed the appeal preferred by the respondent No.2. The appellant may, therefore, succeed in getting relief of direction to respondent No.2 Insurance Company to pay the compensation amount to the 1 (2004) 3 SCC 297 2 (2018) 5 SCC 656 3 2018 (9) SCALE 310 4 (2017) 4 SCC 796 appellant with liberty to recover the same from the tractor owner (respondent No.1). 11. Reverting to the issue regarding the determination of compensation amount by the tribunal and as affirmed by the High Court, we find that the tribunal had taken into account all the relevant aspects and provided for just and proper compensation amount for different heads as are permissible. The High Court, therefore, was justified in not disturbing the said conclusion of the tribunal. We affirm the view so taken by the High Court. Accordingly, the appeal preferred by the appellant for enhancement of compensation amount does not warrant interference. 12. We may place on record that the appellant did make an unsuccessful attempt to persuade us to take a view that the permanent disability should be reckoned as 67% to the whole body. However, after going through the evidence of the doctor who had treated the appellant and the medical records, we find that the assessment made by the tribunal about the extent of permanent disability at 60% to the whole body seems to be a possible view. We are not inclined to disturb the said finding and also because it has been justly affirmed by the High Court, being concurrent finding of fact. Accordingly, the claim of the appellant for enhancement of compensation amount does not merit interference. | 1[ds]11. Reverting to the issue regarding the determination of compensation amount by the tribunal and as affirmed by the High Court, we find that the tribunal had taken into account all the relevant aspects and provided for just and proper compensation amount for different heads as are permissible. The High Court, therefore, was justified in not disturbing the said conclusion of the tribunal. We affirm the view so taken by the High Court. Accordingly, the appeal preferred by the appellant for enhancement of compensation amount does not warrant interference12. We may place on record that the appellant did make an unsuccessful attempt to persuade us to take a view that the permanent disability should be reckoned as 67% to the whole body. However, after going through the evidence of the doctor who had treated the appellant and the medical records, we find that the assessment made by the tribunal about the extent of permanent disability at 60% to the whole body seems to be a possible view. We are not inclined to disturb the said finding and also because it has been justly affirmed by the High Court, being concurrent finding of fact. Accordingly, the claim of the appellant for enhancement of compensation amount does not merit interference. | 1 | 1,840 | 231 | ### 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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till the date of realization. The computation of compensation amount towards different heads arrived at by the tribunal is as follows: Compensation Heads Compensation amount 1. Pain and agony Rs. 85,000/- 2. Medical expenses Rs.1,42,324/- 3. Future medical expenses Rs. 50,000/- 4. Loss of income during laid up period Rs. 12,000/- 5. Rest, Nourishment and attendant charges Rs. 5,000/- 6. Loss of future income Rs.5,83,000/- 7. Conveyance Rs. 5,000/- 8. Loss of amenities & discomfort in life Rs. 20,000/- Total Rs.9,02,324/- 6. Feeling aggrieved by the said award, respondent No.2 (insurer) preferred an appeal being M.F.A. No.7662 of 2013 (MV) and the appellant preferred a separate appeal being M.F.A. No.9995 of 2013 (MV) for enhancement of the compensation amount. The High Court disposed of both these appeals by the impugned common judgment and order. The High Court broadly agreed with all other findings given by the tribunal but held that going by the stand taken by the appellant throughout the proceeding and the contemporaneous documents Exhs. P2 to P5, nowhere was it mentioned that the appellant was travelling in a trailer attached to the tractor. The evidence, however, is unambiguous that the appellant travelled in the tractor which was insured only for agriculture purposes and not for carrying goods. No additional insurance was taken in respect of the trailer rather presence of trailer is not shown or demonstrated in any of the documents and there was no evidence to demonstrate that the tractor was attached to a trailer. The tractor could accommodate only one person namely the driver of the tractor and none else. 7. On that finding, the High Court concluded that the appellant travelled in the tractor in breach of policy terms and conditions and therefore, the Insurance Company cannot be made liable to compensate the owner or the claimant. Accordingly, the appeal preferred by the respondent No.2 was allowed by the High Court and the insurer came to be absolved from the liability to pay compensation. While dealing with the appeal for enhancement of the compensation amount filed by the appellant, the High Court noted that the amount arrived at by the tribunal was just and proper and reckoned all the mandatory heads of compensation. As a result, it concluded that the appellant was not entitled for enhanced compensation. 8. The appellant has assailed the said common judgment and order of the High Court by these appeals. We have heard Ms. Kanika for the appellant and Ms. Rekha Chandra Sekhar for the respondent No.2 (insurer). Both the courts have accepted the case of the appellant that the motor accident occurred on 23 rd February, 2010 at about 8:30 a.m. in which the appellant suffered grievous injuries due to the rash and negligent driving of the driver of tractor. Further, both courts have determined permanent disability of 60% to the whole body suffered by the appellant in the accident. 9. The High Court, however, found in favour of respondent No.2 (insurer) that the appellant travelled in the tractor as a passenger which was in breach of the policy condition, for the tractor was insured for agriculture purposes and not for carrying goods. The evidence on record unambiguously pointed out that neither was any trailer insured nor was any trailer attached to the tractor. Thus, it would follow that the appellant travelled in the tractor as a passenger, even though the tractor could accommodate only one person namely the driver. As a result, the Insurance Company (respondent No.2) was not liable for the loss or injuries suffered by the appellant or to indemnify the owner of the tractor. That conclusion reached by the High Court, in our opinion, is unexceptionable in the fact situation of the present case. 10. At the same time, however, in the facts of the present case the High Court ought to have directed the Insurance Company to pay the compensation amount to the claimant (appellant) with liberty to recover the same from the tractor owner, in view of the consistent view taken in that regard by this Court in National Insurance Co. Ltd. Vs. Swarna Singh & Ors. 1 , Mangla Ram Vs. Oriental Insurance Co. Ltd. 2 , Rani & Ors. Vs. National Insurance Co. Ltd. & Ors. 3 and including Manuara Khatun and Others Vs. Rajesh Kumar Singh And Others. 4 In other words, the High Court should have partly allowed the appeal preferred by the respondent No.2. The appellant may, therefore, succeed in getting relief of direction to respondent No.2 Insurance Company to pay the compensation amount to the 1 (2004) 3 SCC 297 2 (2018) 5 SCC 656 3 2018 (9) SCALE 310 4 (2017) 4 SCC 796 appellant with liberty to recover the same from the tractor owner (respondent No.1). 11. Reverting to the issue regarding the determination of compensation amount by the tribunal and as affirmed by the High Court, we find that the tribunal had taken into account all the relevant aspects and provided for just and proper compensation amount for different heads as are permissible. The High Court, therefore, was justified in not disturbing the said conclusion of the tribunal. We affirm the view so taken by the High Court. Accordingly, the appeal preferred by the appellant for enhancement of compensation amount does not warrant interference. 12. We may place on record that the appellant did make an unsuccessful attempt to persuade us to take a view that the permanent disability should be reckoned as 67% to the whole body. However, after going through the evidence of the doctor who had treated the appellant and the medical records, we find that the assessment made by the tribunal about the extent of permanent disability at 60% to the whole body seems to be a possible view. We are not inclined to disturb the said finding and also because it has been justly affirmed by the High Court, being concurrent finding of fact. Accordingly, the claim of the appellant for enhancement of compensation amount does not merit interference.
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11. Reverting to the issue regarding the determination of compensation amount by the tribunal and as affirmed by the High Court, we find that the tribunal had taken into account all the relevant aspects and provided for just and proper compensation amount for different heads as are permissible. The High Court, therefore, was justified in not disturbing the said conclusion of the tribunal. We affirm the view so taken by the High Court. Accordingly, the appeal preferred by the appellant for enhancement of compensation amount does not warrant interference12. We may place on record that the appellant did make an unsuccessful attempt to persuade us to take a view that the permanent disability should be reckoned as 67% to the whole body. However, after going through the evidence of the doctor who had treated the appellant and the medical records, we find that the assessment made by the tribunal about the extent of permanent disability at 60% to the whole body seems to be a possible view. We are not inclined to disturb the said finding and also because it has been justly affirmed by the High Court, being concurrent finding of fact. Accordingly, the claim of the appellant for enhancement of compensation amount does not merit interference.
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Ramesh Dahyalal Shah & Others Vs. The State of Maharashtra Joint Commissioner of Police Economic Offence Wing Craford Market & Others | Appeal bearing No.118 of 2003.33. Thus, it is apparent that respondent No.3 has approached every forum available to him to raise his grievances and after being unsuccessful there, now he is giving the colour of criminal offence to this civil dispute by filing the subject complaint and levelling the same allegations. After realising that the banks are also not supporting him, he has implicated the Consortium of Banks also as accused in the case alongwith the valuers namely the applicants M/s Yardi Prabhu and M/s M.A.Shetty, thereby trying to disrepute and discredit the verification of the machinery conducted by them also. The intention of the respondent No.3, therefore, appears to be to use the police machinery with malafide intention to recover the amounts which he is unable to recover by civil mode. Therefore, it is sheer abuse of the process of law.34. Here is thus a case which is predominantly of civil nature and which has been given the robe of criminal offence that too, after availing civil remedies. Therefore, as held by the Apex Court in the case of State of Haryana and others -vs- Bhajan Lal and otherss 1992 Supp (1) SCC 335, where a criminal proceeding is manifestly attended with malafide intention and/or the proceeding is maliciously instituted with object to serve the oblique purpose of recovering the amount, such proceeding needs to be quashed and set aside. The allegations made in the present complaint, even after taken, as they are, also do not make out ingredients of the criminal offence, though at the most they may attract civil dispute, for which respondent No.3 has already taken recourse to the civil law and therefore, on this count also, complaint needs to be quashed and set aside.35. In this respect, one can safely place reliance on the observations of the Apex Court in the case of Chandran Ratnaswami -vs- K.C. Palanisamy and ors (2013) 6 SCC 740 , relied upon by learned counsel for applicant, wherein it was held that, when the disputes are of civil nature and finally adjudicated by the competent authority, as in the present case, by the Company Law Board and the disputes are arising out of alleged breach of joint venture agreement and when such disputes have been finally resolved by the Court of competent jurisdiction, then it is apparent that complainant wants to manipulate and misuse the process of Court. In this judgment, it was held that, it would be unfair if the applicants are to be tried in such criminal proceeding arising out of the alleged breach of a Joint Venture Agreement. It was further held that the wholesome power under Section 482 of Code of Criminal Procedure entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue would be abuse of the process of the Court or that the ends of justice require that the proceedings ought to be quashed.36. As a matter of fact in the case in Indian Oil Corpn -vs- NEPC India Ltd and ors, 2006 (3) SCC Cri 736, the Apex Court was pleased to caution about the growing tendency in business circles to convert purely civil disputes into criminal cases. It was observed that:-Any effort to settle civil disputes and claims which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged.37. Learned counsel for applicant has also relied upon the judgment of Honble Supreme Court in the case of V.Y. Jose and anr -vs- State of Gujarat (2009) 3 SCC 78 , wherein the Apex Court was once again pleased to observe that:-Section 482 serves a salutary purpose that a person should not undergo harassment litigation, even though no case has been made out against him. A matter which essentially involves disputes of civil nature, should not be allowed to be subject matter of a criminal offence, the latter being a shortcut of executing a decree which is non-existent.38. As regards the authorities relied upon by learned counsel for respondent No.3, they pertain to different facts and circumstances. For example, in the case of M. Viswanathan -vs- S.K. Tiles and Potteries Private Ltd and ors, (2008) 16 SCC 390 , it was found that the issues raised in the complaint were not adjudicable solely by Civil Court or Company Law Board and hence quashing of the complaint by High Court under Section 482 was not upheld.39. In the latest judgment of Apex Court in the case of Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and ors -vs- State of Gujarat and anr, in Criminal Appeal No.1723 of 2017 dated 4th October, 2017; also as it was found that the case involves allegations of extortion, forgery, fabrication of documents, utilization of those documents to effectuate transfers of title before registering authorities and the deprivation of the complainant of his interest in land on the basis of fabricated power of attorney. Hence, it was held that such allegations in the F.I.R., cannot be construed to be of a merely private or civil dispute. They implicate serious offence having a bearing on a vital societal interest and therefore, it was held that the High Court was justified in declining to quash the F.I.R., though the matter was amicably settled between the private parties.40. In the case of State of Maharashtra and ors -vs- Arun Gulab Gawali, (2009) 9 SCC 701 , relied upon by learned counsel for respondent No.3, Court has explained the parameters and ambit of section 482 of the Code of Criminal Procedure, in the light of decision of Apex Court, in case of State of Haryana -vs- Bhajanlal. Applying those very parameters, here in the case we find that allowing prosecution to continue when the dispute is of civil nature and does not disclose commission of cognizable offence, would be an abuse of process of law as the complaint is filed to recover only funds from applicant Ramesh Shah for which respondent No.3 has already filed civil suit. | 1[ds]27. Thus, a clear finding is arrived at, about the allegations made in the complaint, by the Company Law Board totally ruling out mismanagement of the affairs of the company or any fraudulent intention. It was also held that there was no mismanagement and siphoning of funds. The allegations of illegal alteration of share holding and denial of information to the complainant were also negated.28. It is also pertinent to note that two Summery Suits for recovery of the amounts bearing COMS/188/2016 and COMS/222/2016, respectively, are pending in the Court which are filed by Respondent No.3 Company M/s Tushar Fabrics. The applicants company Denim Private Limited has also filed Summery Suit No.COMSL/257/2016 for recovery of Rs.124 crores towards loss and damages for non lifting of denim by Respondent No.3. Arbitration Petition No. ARBP/262/2017 under Section 14 has also been filed by the applicant Ramesh Shah against Respondent No.3.29. As to the allegations of respondent No.3 made in the complaint that applicant Ramesh Shah hasfor availing loan of Rs.237 crores from Corporation bank and four banks and he did not install the machinery in the plant as per project report, but installed second hand machinery from Gulf Denim Company, which was 18 years old; it is again a matter of record that the applicant M/s Yardi Prabhu Consultants and Valuers Pvt. Ltd., was appointed for the purpose of verification of the same. Thereafter the matter was even referred to the applicant M/s A.V. Shetty and Associates, which was appointed by the Corporation Bank. Both of them have also submitted their project reports negating the allegations made to that effect in the complaint. The Company Law Board has effectively dealt with these allegations in its judgment in paragraph No.77 asIt is a matter of record that after receipt of various complaints from the Petitioners (the present respondent No.3), the consortium of banks passed an order for conducting special audit of the company. In addition, an independent Engineer was deputed to verify the facts of the complaint. However, after verification as per reports, the banks did not find any substance in the complaints of the Petitioners. It has been rightly contended by Mr. Zal Andhyarujina that the Banks normally do not conduct a forensic audit and they, based on the existence financials of the Company, give their report. Further, the engineer deputed by the Banks also only verified the invoice value and did not enter into the investigation as to the correct market value of the machineries. I also agree that no Bank would invite any adverse report to their own project report prepared by their officers during the time, they decide to advance loans to a Company. However, in absence of any corroborative material, the onus of which was on the Petitioners, there is no reason to disbelieve that reports of independent persons which are in favour of the Respondents.(emphasis supplied)30. Thus, as rightly held by the Company Law Board, the banks would not invite any adverse report to their own project report prepared by their officers during the time, they decide to advance loans to a company. However, in absence of any corroborative material, it becomes difficult to disbelieve the reports of these independent persons merely because they are favouring to applicant Ramesh Shah or to infer connivance between them and applicant so as to implead them also along with consortium of banks as accused in the case.31. With regard to the complaint made by respondent No.3 to the Corporation Bank, in this respect, the bank has in its meeting dated 27.3.2014, specifically heldregard to valuation of machineries and end use of the loan amount, it was observed that a Competent LIE i.e. M/s Yardi Prabhu from the panel of Lead Bank, was appointed, who has made six visits to the site from time to time. LIE reports and CAs certificates were duly requisitioned at regular intervals for monitoring of the project. On completion of the project, another LIE i.e. M/s A.V. ShettyAssociates from Lead Banks panel list was also engaged. The fresh valuations have been carried out by M/s A.V. ShettyAssociates and they have already submitted their report wherein the valuation of machinery and the project on the whole have been found to be satisfactory. The report concludes asinspection and verification of the cost of the project based on the data provided by the Company and market information based on primary and secondary research and analysis of the comparative cost estimates of reputed suppliers (domesticinternational) for plant and machinery purchased and installed by the Company the costs incurred by the Company are reasonable and fair and in line with the market norms taking into account the specification/configuration and suitability for the project.Hence the reports furnished by both LIEs are satisfactory.32. As regards the allegations of applicant Ramesh Shah indulging in money laundering or over invoicing and therefore, being black listed for a period of five years and two years respectively, by SEBI, it is pointed out by learned counsel for the applicant Ramesh Shah that the said order of the SEBI has already been set aside on 07.07.2004 by Securities Appellate Board Appellate, Mumbai, in Appeal bearing No.118 of 2003.33. Thus, it is apparent that respondent No.3 has approached every forum available to him to raise his grievances and after being unsuccessful there, now he is giving the colour of criminal offence to this civil dispute by filing the subject complaint and levelling the same allegations. After realising that the banks are also not supporting him, he has implicated the Consortium of Banks also as accused in the case alongwith the valuers namely the applicants M/s Yardi Prabhu and M/s M.A.Shetty, thereby trying to disrepute and discredit the verification of the machinery conducted by them also. The intention of the respondent No.3, therefore, appears to be to use the police machinery with malafide intention to recover the amounts which he is unable to recover by civil mode. Therefore, it is sheer abuse of the process of law.34. Here is thus a case which is predominantly of civil nature and which has been given the robe of criminal offence that too, after availing civil remedies. Therefore, as held by the Apex Court in the case of State of Haryana and othersBhajan Lal and otherss 1992 Supp (1) SCC 335, where a criminal proceeding is manifestly attended with malafide intention and/or the proceeding is maliciously instituted with object to serve the oblique purpose of recovering the amount, such proceeding needs to be quashed and set aside. The allegations made in the present complaint, even after taken, as they are, also do not make out ingredients of the criminal offence, though at the most they may attract civil dispute, for which respondent No.3 has already taken recourse to the civil law and therefore, on this count also, complaint needs to be quashed and set aside.35. In this respect, one can safely place reliance on the observations of the Apex Court in the case of Chandran RatnaswamiK.C. Palanisamy and ors (2013) 6 SCC 740 , relied upon by learned counsel for applicant, wherein it was held that, when the disputes are of civil nature and finally adjudicated by the competent authority, as in the present case, by the Company Law Board and the disputes are arising out of alleged breach of joint venture agreement and when such disputes have been finally resolved by the Court of competent jurisdiction, then it is apparent that complainant wants to manipulate and misuse the process of Court. In this judgment, it was held that, it would be unfair if the applicants are to be tried in such criminal proceeding arising out of the alleged breach of a Joint Venture Agreement. It was further held that the wholesome power under Section 482 of Code of Criminal Procedure entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue would be abuse of the process of the Court or that the ends of justice require that the proceedings ought to be quashed.36. As a matter of fact in the case in Indian Oil CorpnNEPC India Ltd and ors, 2006 (3) SCC Cri 736, the Apex Court was pleased to caution about the growing tendency in business circles to convert purely civil disputes into criminal cases. It was observedeffort to settle civil disputes and claims which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged.37. Learned counsel for applicant has also relied upon the judgment of Honble Supreme Court in the case of V.Y. Jose and anrState of Gujarat (2009) 3 SCC 78 , wherein the Apex Court was once again pleased to observeAs regards the authorities relied upon by learned counsel for respondent No.3, they pertain to different facts and circumstances. For example, in the case of M. ViswanathanS.K. Tiles and Potteries Private Ltd and ors, (2008) 16 SCC 390 , it was found that the issues raised in the complaint were not adjudicable solely by Civil Court or Company Law Board and hence quashing of the complaint by High Court under Section 482 was not upheld.39. In the latest judgment of Apex Court in the case of Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and orsState of Gujarat and anr, in Criminal Appeal No.1723 of 2017 dated 4th October, 2017; also as it was found that the case involves allegations of extortion, forgery, fabrication of documents, utilization of those documents to effectuate transfers of title before registering authorities and the deprivation of the complainant of his interest in land on the basis of fabricated power of attorney. Hence, it was held that such allegations in the F.I.R., cannot be construed to be of a merely private or civil dispute. They implicate serious offence having a bearing on a vital societal interest and therefore, it was held that the High Court was justified in declining to quash the F.I.R., though the matter was amicably settled between the private parties.40. In the case of State of Maharashtra and orsArun Gulab Gawali, (2009) 9 SCC 701 , relied upon by learned counsel for respondent No.3, Court has explained the parameters and ambit of section 482 of the Code of Criminal Procedure, in the light of decision of Apex Court, in case of State of HaryanaBhajanlal. Applying those very parameters, here in the case we find that allowing prosecution to continue when the dispute is of civil nature and does not disclose commission of cognizable offence, would be an abuse of process of law as the complaint is filed to recover only funds from applicant Ramesh Shah for which respondent No.3 has already filed civil suit. | 1 | 5,475 | 1,945 | ### 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:
Appeal bearing No.118 of 2003.33. Thus, it is apparent that respondent No.3 has approached every forum available to him to raise his grievances and after being unsuccessful there, now he is giving the colour of criminal offence to this civil dispute by filing the subject complaint and levelling the same allegations. After realising that the banks are also not supporting him, he has implicated the Consortium of Banks also as accused in the case alongwith the valuers namely the applicants M/s Yardi Prabhu and M/s M.A.Shetty, thereby trying to disrepute and discredit the verification of the machinery conducted by them also. The intention of the respondent No.3, therefore, appears to be to use the police machinery with malafide intention to recover the amounts which he is unable to recover by civil mode. Therefore, it is sheer abuse of the process of law.34. Here is thus a case which is predominantly of civil nature and which has been given the robe of criminal offence that too, after availing civil remedies. Therefore, as held by the Apex Court in the case of State of Haryana and others -vs- Bhajan Lal and otherss 1992 Supp (1) SCC 335, where a criminal proceeding is manifestly attended with malafide intention and/or the proceeding is maliciously instituted with object to serve the oblique purpose of recovering the amount, such proceeding needs to be quashed and set aside. The allegations made in the present complaint, even after taken, as they are, also do not make out ingredients of the criminal offence, though at the most they may attract civil dispute, for which respondent No.3 has already taken recourse to the civil law and therefore, on this count also, complaint needs to be quashed and set aside.35. In this respect, one can safely place reliance on the observations of the Apex Court in the case of Chandran Ratnaswami -vs- K.C. Palanisamy and ors (2013) 6 SCC 740 , relied upon by learned counsel for applicant, wherein it was held that, when the disputes are of civil nature and finally adjudicated by the competent authority, as in the present case, by the Company Law Board and the disputes are arising out of alleged breach of joint venture agreement and when such disputes have been finally resolved by the Court of competent jurisdiction, then it is apparent that complainant wants to manipulate and misuse the process of Court. In this judgment, it was held that, it would be unfair if the applicants are to be tried in such criminal proceeding arising out of the alleged breach of a Joint Venture Agreement. It was further held that the wholesome power under Section 482 of Code of Criminal Procedure entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue would be abuse of the process of the Court or that the ends of justice require that the proceedings ought to be quashed.36. As a matter of fact in the case in Indian Oil Corpn -vs- NEPC India Ltd and ors, 2006 (3) SCC Cri 736, the Apex Court was pleased to caution about the growing tendency in business circles to convert purely civil disputes into criminal cases. It was observed that:-Any effort to settle civil disputes and claims which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged.37. Learned counsel for applicant has also relied upon the judgment of Honble Supreme Court in the case of V.Y. Jose and anr -vs- State of Gujarat (2009) 3 SCC 78 , wherein the Apex Court was once again pleased to observe that:-Section 482 serves a salutary purpose that a person should not undergo harassment litigation, even though no case has been made out against him. A matter which essentially involves disputes of civil nature, should not be allowed to be subject matter of a criminal offence, the latter being a shortcut of executing a decree which is non-existent.38. As regards the authorities relied upon by learned counsel for respondent No.3, they pertain to different facts and circumstances. For example, in the case of M. Viswanathan -vs- S.K. Tiles and Potteries Private Ltd and ors, (2008) 16 SCC 390 , it was found that the issues raised in the complaint were not adjudicable solely by Civil Court or Company Law Board and hence quashing of the complaint by High Court under Section 482 was not upheld.39. In the latest judgment of Apex Court in the case of Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and ors -vs- State of Gujarat and anr, in Criminal Appeal No.1723 of 2017 dated 4th October, 2017; also as it was found that the case involves allegations of extortion, forgery, fabrication of documents, utilization of those documents to effectuate transfers of title before registering authorities and the deprivation of the complainant of his interest in land on the basis of fabricated power of attorney. Hence, it was held that such allegations in the F.I.R., cannot be construed to be of a merely private or civil dispute. They implicate serious offence having a bearing on a vital societal interest and therefore, it was held that the High Court was justified in declining to quash the F.I.R., though the matter was amicably settled between the private parties.40. In the case of State of Maharashtra and ors -vs- Arun Gulab Gawali, (2009) 9 SCC 701 , relied upon by learned counsel for respondent No.3, Court has explained the parameters and ambit of section 482 of the Code of Criminal Procedure, in the light of decision of Apex Court, in case of State of Haryana -vs- Bhajanlal. Applying those very parameters, here in the case we find that allowing prosecution to continue when the dispute is of civil nature and does not disclose commission of cognizable offence, would be an abuse of process of law as the complaint is filed to recover only funds from applicant Ramesh Shah for which respondent No.3 has already filed civil suit.
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reports furnished by both LIEs are satisfactory.32. As regards the allegations of applicant Ramesh Shah indulging in money laundering or over invoicing and therefore, being black listed for a period of five years and two years respectively, by SEBI, it is pointed out by learned counsel for the applicant Ramesh Shah that the said order of the SEBI has already been set aside on 07.07.2004 by Securities Appellate Board Appellate, Mumbai, in Appeal bearing No.118 of 2003.33. Thus, it is apparent that respondent No.3 has approached every forum available to him to raise his grievances and after being unsuccessful there, now he is giving the colour of criminal offence to this civil dispute by filing the subject complaint and levelling the same allegations. After realising that the banks are also not supporting him, he has implicated the Consortium of Banks also as accused in the case alongwith the valuers namely the applicants M/s Yardi Prabhu and M/s M.A.Shetty, thereby trying to disrepute and discredit the verification of the machinery conducted by them also. The intention of the respondent No.3, therefore, appears to be to use the police machinery with malafide intention to recover the amounts which he is unable to recover by civil mode. Therefore, it is sheer abuse of the process of law.34. Here is thus a case which is predominantly of civil nature and which has been given the robe of criminal offence that too, after availing civil remedies. Therefore, as held by the Apex Court in the case of State of Haryana and othersBhajan Lal and otherss 1992 Supp (1) SCC 335, where a criminal proceeding is manifestly attended with malafide intention and/or the proceeding is maliciously instituted with object to serve the oblique purpose of recovering the amount, such proceeding needs to be quashed and set aside. The allegations made in the present complaint, even after taken, as they are, also do not make out ingredients of the criminal offence, though at the most they may attract civil dispute, for which respondent No.3 has already taken recourse to the civil law and therefore, on this count also, complaint needs to be quashed and set aside.35. In this respect, one can safely place reliance on the observations of the Apex Court in the case of Chandran RatnaswamiK.C. Palanisamy and ors (2013) 6 SCC 740 , relied upon by learned counsel for applicant, wherein it was held that, when the disputes are of civil nature and finally adjudicated by the competent authority, as in the present case, by the Company Law Board and the disputes are arising out of alleged breach of joint venture agreement and when such disputes have been finally resolved by the Court of competent jurisdiction, then it is apparent that complainant wants to manipulate and misuse the process of Court. In this judgment, it was held that, it would be unfair if the applicants are to be tried in such criminal proceeding arising out of the alleged breach of a Joint Venture Agreement. It was further held that the wholesome power under Section 482 of Code of Criminal Procedure entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue would be abuse of the process of the Court or that the ends of justice require that the proceedings ought to be quashed.36. As a matter of fact in the case in Indian Oil CorpnNEPC India Ltd and ors, 2006 (3) SCC Cri 736, the Apex Court was pleased to caution about the growing tendency in business circles to convert purely civil disputes into criminal cases. It was observedeffort to settle civil disputes and claims which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged.37. Learned counsel for applicant has also relied upon the judgment of Honble Supreme Court in the case of V.Y. Jose and anrState of Gujarat (2009) 3 SCC 78 , wherein the Apex Court was once again pleased to observeAs regards the authorities relied upon by learned counsel for respondent No.3, they pertain to different facts and circumstances. For example, in the case of M. ViswanathanS.K. Tiles and Potteries Private Ltd and ors, (2008) 16 SCC 390 , it was found that the issues raised in the complaint were not adjudicable solely by Civil Court or Company Law Board and hence quashing of the complaint by High Court under Section 482 was not upheld.39. In the latest judgment of Apex Court in the case of Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and orsState of Gujarat and anr, in Criminal Appeal No.1723 of 2017 dated 4th October, 2017; also as it was found that the case involves allegations of extortion, forgery, fabrication of documents, utilization of those documents to effectuate transfers of title before registering authorities and the deprivation of the complainant of his interest in land on the basis of fabricated power of attorney. Hence, it was held that such allegations in the F.I.R., cannot be construed to be of a merely private or civil dispute. They implicate serious offence having a bearing on a vital societal interest and therefore, it was held that the High Court was justified in declining to quash the F.I.R., though the matter was amicably settled between the private parties.40. In the case of State of Maharashtra and orsArun Gulab Gawali, (2009) 9 SCC 701 , relied upon by learned counsel for respondent No.3, Court has explained the parameters and ambit of section 482 of the Code of Criminal Procedure, in the light of decision of Apex Court, in case of State of HaryanaBhajanlal. Applying those very parameters, here in the case we find that allowing prosecution to continue when the dispute is of civil nature and does not disclose commission of cognizable offence, would be an abuse of process of law as the complaint is filed to recover only funds from applicant Ramesh Shah for which respondent No.3 has already filed civil suit.
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Municipal Corporation Greater Bombay Vs. Bharat Petroleum Corpn. Ltd | by the High Court, we are of the view that serious infirmity was allowed to be crept into the process due to unwarranted and unjust dissection of Section 328(3) of the Act and import into the words meanings totally uncalled for and beyond their context, defeating to a great extent the very purpose and aim of enactment of the provision by the legislature. The statutory definition of the expression "sky-sign" ordains it to mean, any word, letter, model, sign, device or representation in the nature of an "advertisement", "announcement" or "direction", supported on or attached to any of the things specified upon or over any land or building or structure in a manner visible against the sky from some point in any street and to be also inclusive of all and every part of such pole, post, standard frame work or other support. It is also stipulated therein to include any balloon, parachute or other similar device employed wholly or in part for the purpose of any advertisement, announcement or direction upon or over any land, building or structure or upon or over any street. The main and salutary purpose of Section 328/328A is to regulate the installation/construction of signboards of the nature defined and envisaged therein to keep road margins and space above such margins not indiscriminately meddled with so as to effect the free movement and free flow of traffic, preserve the ecology and environment by averting and regulation to the extent required, ensuring, in public interest, adverse physiological and psychological impacts either directly or indirectly due to the use of neon lights/illuminations used for the installations. The provision for licensing is incidental and necessarily required to properly and effectively enforce the regulations and the levy and collection of fee also ultimately seem to achieve the same purpose. The statutory provisions seem to have been thus enacted with a laudable public purpose and the definition is also not only inclusive in nature but the enumeration of the various nature of fixtures, the manner and methods adopted therefor, as also the obvious and ostensible object of such fixtures/ installations found specified therein, under the scheme of things, are found to be with the intention of making the provision an all inclusive one to cover or rope in all possible things and not to operate in a manner to bring about any limitation on their scope, and that too to render the very provision otiose, redundant and meaningless.9. Coming to the ordinary meaning of the words noticed by the High Court, "Advertisement", "Announcement" and "Direction" used in the statutory provision under consideration, we find the High Court to have adopted a hyper-technical approach, altogether. In common parlance, "advertisement" means to make publicly known an information by some device and to draw or attract attention of public/individual concerned to such information. It need not necessarily be to sell only or solely for commercial exploitation. Likewise, "announcement" also normally means any and every effort or enterprise and attempts made to make known a thing or the existence of a thing openly or publicly. Similarly, the word "direction" in the context of users of the road or motorists on the road should invariably only mean, to show the way or path towards an object or point or indicate the route for a destination. A direction in a particular context may even be an instruction simplicitor to guide and need not always mean a command to obey or carry out implicitly only the instruction. In construing the provisions of a statute or the words or language used, it has been always considered essential for the Court normally to give effect to the natural or ordinary meaning of the words, keeping in view the subject matter with reference to which the words are used, without ascribing to words used any absolute meaning as if in vacuo or without reference to the context, particularly when such normal or ordinary understanding or construction conforms to and in consistent with the purpose or object of the legislation. The principles of Ejusdem Generis/Noscitur a sociis have no relevance to the case on hand and seem to have been over deployed, unnecessarily under scoring the actual a real meaning of the words in the context and purpose of their use in the statutory provision of the Act. 10. The indication given above by emphasis supplied to some of the words used in the provision in question as well as the words "in the nature" of an advertisement, announcement or direction would go to show that it is not a must to be that but is enough if its "in the nature of" that which is specified. The three words required to be construed cannot be said to admit of any one particular meaning alone but capable of being understood by their general or interrelated meaning suitable for the context. Consequently, we are not persuaded to affix our seal of approval to the manner and method of construction adopted by the High Court - both the learned Single Judge and the Division Bench. In view of the above, we allow this appeal. The judgment under challenge cannot be sustained and while setting aside the same, we order the dismissal of Misc. Writ Petition No. 1380 of 1976 filed by the respondent in the High Court. 11. The consequences of our allowing the appeal and ordering the dismissal of the writ petition filed by the respondent would result in the restoration of the proceedings instituted before the Criminal Court for prosecuting the respondent under Section 471 of the Act or with a liberty to institute or pursue the same further. The fact that the respondent succeeded before the learned Single Judge and the Division Bench would at any rate go to show that the respondent had no culpable or guilty mind to violate or evade compliance and that the respondent seems to have entertained a genuine belief that they are not bound by the provisions contained in Section 328/328A of the Act. | 1[ds]6. Though, the relevant statutory provisions concerned are Section 328/328A of the Act, the issues raised before us have to be considered and decided mainly on the scope of the sub Section (3) of Section 328 of theThe learned counsel appearing on either side invited our attention, at considerable length, to the judgments of the High Court wherein the dictionary meaning of the words required to be construed came to be adverted to from Encyclopedia Britannica and the Words and phrases: permanent edition of West Publishing Company and it is unnecessary to repeat them once again, herein. Reference has also been made to the portions of the judgments where observations came to be made about the principles underlying the doctrine of "Ejusdem Generis and Noscitur A Sociis" and their relevance and application to the case on hand. The Principle underlying "Noscitur A Sociis" is that, two or more words which are susceptible of analogous meaning when are coupled together are to be understood as used in their cognate sense, taking, as it were, their colour from each other, that is, the more general is to be restricted to a sense analogous to the less general. The principle underlying "Ejusdem Generis" is applied when the statutory provision concerned contains an enumeration of specific words, the subject of the enumeration thereby constituting a class or category but which class or category is not exhausted at the same time by the enumeration and the general term follows the enumeration with no specific indication of any different legislative intention. This rule which normally envisage words of general nature following specific and particular words to be construed as limited to things which are of the same nature as those specified, also requires to be applied with great caution and not pushed too far so as to unduly or unnecessarily limit general and comprehensive words to dwarf size. Dehors the doctrine or maxim concerned useful in the matter of construction of a statute or its provisions the intent of the legislature cannot altogether be ignored and a construction which really subserves the purpose of the enactment must only be adopted than one which will defeat it and thereby ensure in the process that no part of the provision is rendered surplus or otiose.8. On a careful consideration of the approach and methodology of the construction adopted by the High Court, we are of the view that serious infirmity was allowed to be crept into the process due to unwarranted and unjust dissection of Section 328(3) of the Act and import into the words meanings totally uncalled for and beyond their context, defeating to a great extent the very purpose and aim of enactment of the provision by the legislature. The statutory definition of the expressionordains it to mean, any word, letter, model, sign, device or representation in the nature of an "advertisement", "announcement" or "direction", supported on or attached to any of the things specified upon or over any land or building or structure in a manner visible against the sky from some point in any street and to be also inclusive of all and every part of such pole, post, standard frame work or other support. It is also stipulated therein to include any balloon, parachute or other similar device employed wholly or in part for the purpose of any advertisement, announcement or direction upon or over any land, building or structure or upon or over any street. The main and salutary purpose of Section 328/328A is to regulate the installation/construction of signboards of the nature defined and envisaged therein to keep road margins and space above such margins not indiscriminately meddled with so as to effect the free movement and free flow of traffic, preserve the ecology and environment by averting and regulation to the extent required, ensuring, in public interest, adverse physiological and psychological impacts either directly or indirectly due to the use of neon lights/illuminations used for the installations. The provision for licensing is incidental and necessarily required to properly and effectively enforce the regulations and the levy and collection of fee also ultimately seem to achieve the same purpose. The statutory provisions seem to have been thus enacted with a laudable public purpose and the definition is also not only inclusive in nature but the enumeration of the various nature of fixtures, the manner and methods adopted therefor, as also the obvious and ostensible object of such fixtures/ installations found specified therein, under the scheme of things, are found to be with the intention of making the provision an all inclusive one to cover or rope in all possible things and not to operate in a manner to bring about any limitation on their scope, and that too to render the very provision otiose, redundant and meaningless.9. Coming to the ordinary meaning of the words noticed by the High Court, "Advertisement", "Announcement" and "Direction" used in the statutory provision under consideration, we find the High Court to have adopted aapproach, altogether. In common parlance, "advertisement" means to make publicly known an information by some device and to draw or attract attention of public/individual concerned to such information. It need not necessarily be to sell only or solely for commercial exploitation. Likewise, "announcement" also normally means any and every effort or enterprise and attempts made to make known a thing or the existence of a thing openly or publicly. Similarly, the word "direction" in the context of users of the road or motorists on the road should invariably only mean, to show the way or path towards an object or point or indicate the route for a destination. A direction in a particular context may even be an instruction simplicitor to guide and need not always mean a command to obey or carry out implicitly only the instruction. In construing the provisions of a statute or the words or language used, it has been always considered essential for the Court normally to give effect to the natural or ordinary meaning of the words, keeping in view the subject matter with reference to which the words are used, without ascribing to words used any absolute meaning as if in vacuo or without reference to the context, particularly when such normal or ordinary understanding or construction conforms to and in consistent with the purpose or object of the legislation. The principles of Ejusdem Generis/Noscitur a sociis have no relevance to the case on hand and seem to have been over deployed, unnecessarily under scoring the actual a real meaning of the words in the context and purpose of their use in the statutory provision of the Act.The consequences of our allowing the appeal and ordering the dismissal of the writ petition filed by the respondent would result in the restoration of the proceedings instituted before the Criminal Court for prosecuting the respondent under Section 471 of the Act or with a liberty to institute or pursue the same further. The fact that the respondent succeeded before the learned Single Judge and the Division Bench would at any rate go to show that the respondent had no culpable or guilty mind to violate or evade compliance and that the respondent seems to have entertained a genuine belief that they are not bound by the provisions contained in Section 328/328A of the Act. | 1 | 3,843 | 1,324 | ### 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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by the High Court, we are of the view that serious infirmity was allowed to be crept into the process due to unwarranted and unjust dissection of Section 328(3) of the Act and import into the words meanings totally uncalled for and beyond their context, defeating to a great extent the very purpose and aim of enactment of the provision by the legislature. The statutory definition of the expression "sky-sign" ordains it to mean, any word, letter, model, sign, device or representation in the nature of an "advertisement", "announcement" or "direction", supported on or attached to any of the things specified upon or over any land or building or structure in a manner visible against the sky from some point in any street and to be also inclusive of all and every part of such pole, post, standard frame work or other support. It is also stipulated therein to include any balloon, parachute or other similar device employed wholly or in part for the purpose of any advertisement, announcement or direction upon or over any land, building or structure or upon or over any street. The main and salutary purpose of Section 328/328A is to regulate the installation/construction of signboards of the nature defined and envisaged therein to keep road margins and space above such margins not indiscriminately meddled with so as to effect the free movement and free flow of traffic, preserve the ecology and environment by averting and regulation to the extent required, ensuring, in public interest, adverse physiological and psychological impacts either directly or indirectly due to the use of neon lights/illuminations used for the installations. The provision for licensing is incidental and necessarily required to properly and effectively enforce the regulations and the levy and collection of fee also ultimately seem to achieve the same purpose. The statutory provisions seem to have been thus enacted with a laudable public purpose and the definition is also not only inclusive in nature but the enumeration of the various nature of fixtures, the manner and methods adopted therefor, as also the obvious and ostensible object of such fixtures/ installations found specified therein, under the scheme of things, are found to be with the intention of making the provision an all inclusive one to cover or rope in all possible things and not to operate in a manner to bring about any limitation on their scope, and that too to render the very provision otiose, redundant and meaningless.9. Coming to the ordinary meaning of the words noticed by the High Court, "Advertisement", "Announcement" and "Direction" used in the statutory provision under consideration, we find the High Court to have adopted a hyper-technical approach, altogether. In common parlance, "advertisement" means to make publicly known an information by some device and to draw or attract attention of public/individual concerned to such information. It need not necessarily be to sell only or solely for commercial exploitation. Likewise, "announcement" also normally means any and every effort or enterprise and attempts made to make known a thing or the existence of a thing openly or publicly. Similarly, the word "direction" in the context of users of the road or motorists on the road should invariably only mean, to show the way or path towards an object or point or indicate the route for a destination. A direction in a particular context may even be an instruction simplicitor to guide and need not always mean a command to obey or carry out implicitly only the instruction. In construing the provisions of a statute or the words or language used, it has been always considered essential for the Court normally to give effect to the natural or ordinary meaning of the words, keeping in view the subject matter with reference to which the words are used, without ascribing to words used any absolute meaning as if in vacuo or without reference to the context, particularly when such normal or ordinary understanding or construction conforms to and in consistent with the purpose or object of the legislation. The principles of Ejusdem Generis/Noscitur a sociis have no relevance to the case on hand and seem to have been over deployed, unnecessarily under scoring the actual a real meaning of the words in the context and purpose of their use in the statutory provision of the Act. 10. The indication given above by emphasis supplied to some of the words used in the provision in question as well as the words "in the nature" of an advertisement, announcement or direction would go to show that it is not a must to be that but is enough if its "in the nature of" that which is specified. The three words required to be construed cannot be said to admit of any one particular meaning alone but capable of being understood by their general or interrelated meaning suitable for the context. Consequently, we are not persuaded to affix our seal of approval to the manner and method of construction adopted by the High Court - both the learned Single Judge and the Division Bench. In view of the above, we allow this appeal. The judgment under challenge cannot be sustained and while setting aside the same, we order the dismissal of Misc. Writ Petition No. 1380 of 1976 filed by the respondent in the High Court. 11. The consequences of our allowing the appeal and ordering the dismissal of the writ petition filed by the respondent would result in the restoration of the proceedings instituted before the Criminal Court for prosecuting the respondent under Section 471 of the Act or with a liberty to institute or pursue the same further. The fact that the respondent succeeded before the learned Single Judge and the Division Bench would at any rate go to show that the respondent had no culpable or guilty mind to violate or evade compliance and that the respondent seems to have entertained a genuine belief that they are not bound by the provisions contained in Section 328/328A of the Act.
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1
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enumeration thereby constituting a class or category but which class or category is not exhausted at the same time by the enumeration and the general term follows the enumeration with no specific indication of any different legislative intention. This rule which normally envisage words of general nature following specific and particular words to be construed as limited to things which are of the same nature as those specified, also requires to be applied with great caution and not pushed too far so as to unduly or unnecessarily limit general and comprehensive words to dwarf size. Dehors the doctrine or maxim concerned useful in the matter of construction of a statute or its provisions the intent of the legislature cannot altogether be ignored and a construction which really subserves the purpose of the enactment must only be adopted than one which will defeat it and thereby ensure in the process that no part of the provision is rendered surplus or otiose.8. On a careful consideration of the approach and methodology of the construction adopted by the High Court, we are of the view that serious infirmity was allowed to be crept into the process due to unwarranted and unjust dissection of Section 328(3) of the Act and import into the words meanings totally uncalled for and beyond their context, defeating to a great extent the very purpose and aim of enactment of the provision by the legislature. The statutory definition of the expressionordains it to mean, any word, letter, model, sign, device or representation in the nature of an "advertisement", "announcement" or "direction", supported on or attached to any of the things specified upon or over any land or building or structure in a manner visible against the sky from some point in any street and to be also inclusive of all and every part of such pole, post, standard frame work or other support. It is also stipulated therein to include any balloon, parachute or other similar device employed wholly or in part for the purpose of any advertisement, announcement or direction upon or over any land, building or structure or upon or over any street. The main and salutary purpose of Section 328/328A is to regulate the installation/construction of signboards of the nature defined and envisaged therein to keep road margins and space above such margins not indiscriminately meddled with so as to effect the free movement and free flow of traffic, preserve the ecology and environment by averting and regulation to the extent required, ensuring, in public interest, adverse physiological and psychological impacts either directly or indirectly due to the use of neon lights/illuminations used for the installations. The provision for licensing is incidental and necessarily required to properly and effectively enforce the regulations and the levy and collection of fee also ultimately seem to achieve the same purpose. The statutory provisions seem to have been thus enacted with a laudable public purpose and the definition is also not only inclusive in nature but the enumeration of the various nature of fixtures, the manner and methods adopted therefor, as also the obvious and ostensible object of such fixtures/ installations found specified therein, under the scheme of things, are found to be with the intention of making the provision an all inclusive one to cover or rope in all possible things and not to operate in a manner to bring about any limitation on their scope, and that too to render the very provision otiose, redundant and meaningless.9. Coming to the ordinary meaning of the words noticed by the High Court, "Advertisement", "Announcement" and "Direction" used in the statutory provision under consideration, we find the High Court to have adopted aapproach, altogether. In common parlance, "advertisement" means to make publicly known an information by some device and to draw or attract attention of public/individual concerned to such information. It need not necessarily be to sell only or solely for commercial exploitation. Likewise, "announcement" also normally means any and every effort or enterprise and attempts made to make known a thing or the existence of a thing openly or publicly. Similarly, the word "direction" in the context of users of the road or motorists on the road should invariably only mean, to show the way or path towards an object or point or indicate the route for a destination. A direction in a particular context may even be an instruction simplicitor to guide and need not always mean a command to obey or carry out implicitly only the instruction. In construing the provisions of a statute or the words or language used, it has been always considered essential for the Court normally to give effect to the natural or ordinary meaning of the words, keeping in view the subject matter with reference to which the words are used, without ascribing to words used any absolute meaning as if in vacuo or without reference to the context, particularly when such normal or ordinary understanding or construction conforms to and in consistent with the purpose or object of the legislation. The principles of Ejusdem Generis/Noscitur a sociis have no relevance to the case on hand and seem to have been over deployed, unnecessarily under scoring the actual a real meaning of the words in the context and purpose of their use in the statutory provision of the Act.The consequences of our allowing the appeal and ordering the dismissal of the writ petition filed by the respondent would result in the restoration of the proceedings instituted before the Criminal Court for prosecuting the respondent under Section 471 of the Act or with a liberty to institute or pursue the same further. The fact that the respondent succeeded before the learned Single Judge and the Division Bench would at any rate go to show that the respondent had no culpable or guilty mind to violate or evade compliance and that the respondent seems to have entertained a genuine belief that they are not bound by the provisions contained in Section 328/328A of the Act.
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State Of Maharashtra Vs. Narayan Vyankatesh Deshpande | that the Watan was of land revenue only and not of the soil and he was, therefore, entitled to compensation as provided in s. 6(2) of the Act and filed a suit for recovery of Rs. 15, 074-4-0 by way of compensation against the State of Maharashtra in the Court of Civil Judge, Senior Division, Satara. The claim was decreed by the learned Civil Judge, Senior Division and on appeal by the State of Maharashtra the High Court affirmed the view taken by the learned Civil Judge, Senior Division. The High Court construed the Sanad granted by the British government in favour of the ancestors of the respondent in the light of the surrounding circumstances and particularly the entries contemporaneously made in the alienation register and came to the conclusion that the grant embodied in the Sanad was not a grant of the soil but was merely a grant of land revenue and the respondent was, therefore, entitled to claim compensation the basis laid down in s. 6(2) of the Act. The State of Maharashtra being aggrieved by the decree passed by the learned Civil Judge, Senior Division and affirmed by the High Court preferred the present appeal with special leave obtained from this Court.We have carefully gone through the judgment of the High Court and we find ourselves completely in agreement with the conclusion reached there. The judgment of the High Court is a well reasoned judgment and the learned counsel appearing on behalf of the State of Maharashtra has not been able to show any infirmity in it. The opening part of the Sanad clearly shows that it was issued in recognition of a grant which was already made in favour of the ancestors of the respondent. The Sanad undoubtedly used the word lands to describe the subject-matter of the grant, but the word land is defined in Bombay Act 2 of 1863 to include share of land revenue and this meaning should apply in the construction of the word land in the Sanad, since the Sanad was apparently granted pursuant to the enquiry made under Bombay Act 2 of 1863. The description of the subject matter of the grant as lands in the Sanad would not, therefore, necessarily indicate that it was a grant of the soil. In fact, this description standing alone would rather indicate that it was a grant of land revenue only, since grant of the soil would ordinarily be accompanied by words such as Darobast or Jal, Taru, Truna, Kastha and Pashan. Moreover, the entries contemporaneously made in the alienation register also showed that the grant referred to in the Sanad was a grant of land revenue only and not a grant of the soil. The High Court has discussed these entries and it is not necessary for us to reiterate what has been so ably said by the High Court. The earlier documents relied upon by the respondent have also been referred to by the High Court and they clearly go to show that the grant was of land revenue and not of the soil. This position was in fact accepted by the Revenue officers all throughout and that is evident from the ord er of the District Deputy Collector, Satara dated 19th August, 1937 (Ex. 28) and the decision dated 28th February, 1951 (Ex. 331) given by the Collector of North Satara allowing an appeal filed by the respondent. We are, therefore, of the view that the High Court was right in holding that the grant in favour of the ancestors of the respondent was a grant of land revenue only and not a grant of the soil and since the Watan held by the respondent at the date of the coming into force of the Act was a Watan of land revenue, the respondent was entitled to compensation in the sum of Rs. 15, 074-4-0 under s. 6(2) of the Act.It is indeed difficult to understand as to why the State of Maharashtra should have preferred the present appeal at all. The judgment of the High Court was pre- eminently a correct judgment based on a careful appreciation of the evidence on record and it did no more than adopt a construction of the grant which had throughout been accepted as the correct construction by the Revenue officers over the last 75 years.2.The learned counsel appearing on behalf of the State of Maharashtra in fact found it impossible to assail the reasoning of the judgment. It is evident that the appeal was filed by the State of Maharashtra without giving much thought to the question and caring to enquire whether the judgment of the High Court suffered from any errors requiring to be corrected by a superior court.3. We do not think it is right that State Governments should lightly prefer an appeal in this Court against a decision given by the High Court unless they are satisfied, on careful consideration and proper scrutiny, that the decision is erroneous and public interest requires that it should be brought before a superior court for being corrected. The State Governments should not adopt a litigious approach and waste public revenues on fruitless and futile litigation where there - are no chances of success. It is unfortunately a fact that it costs quite a large sum of money to come to this Court and this Court has become untouchable and unapproachable by many litigants who can not afford the large expense involved in fighting a litigation in this Court. It is, therefore, all the more necessary that State Governments, which have public accountability in respect of their actions, should not lightly rush to this Court to challenge a judgment of the High Court which is plainly and manifestly correct and drag the opposite party in unnecessary expense, part of which would, in any event, not be compensated by award of cost. The present appeal is an instance of the kind of unnecessary and futile litigation which the State Governments can and should avoid.4. | 0[ds]The judgment of the High Court is a well reasoned judgment and the learned counsel appearing on behalf of the State of Maharashtra has not been able to show any infirmity in it. The opening part of the Sanad clearly shows that it was issued in recognition of a grant which was already made in favour of the ancestors of the respondent. The Sanad undoubtedly used the word lands to describe the subject-matter of the grant, but the word land is defined in Bombay Act 2 of 1863 to include share of land revenue and this meaning should apply in the construction of the word land in the Sanad, since the Sanad was apparently granted pursuant to the enquiry made under Bombay Act 2 of 1863. The description of the subject matter of the grant as lands in the Sanad would not, therefore, necessarily indicate that it was a grant of the soil. In fact, this description standing alone would rather indicate that it was a grant of land revenue only, since grant of the soil would ordinarily be accompanied by words such as Darobast or Jal, Taru, Truna, Kastha and Pashan. Moreover, the entries contemporaneously made in the alienation register also showed that the grant referred to in the Sanad was a grant of land revenue only and not a grant of the soil. The High Court has discussed these entries and it is not necessary for us to reiterate what has been so ably said by the High Court. The earlier documents relied upon by the respondent have also been referred to by the High Court and they clearly go to show that the grant was of land revenue and not of the soil. This position was in fact accepted by the Revenue officers all throughout and that is evident from the ord er of the District Deputy Collector, Satara dated 19th August, 1937 (Ex. 28) and the decision dated 28th February, 1951 (Ex. 331) given by the Collector of North Satara allowing an appeal filed by the respondent. We are, therefore, of the view that the High Court was right in holding that the grant in favour of the ancestors of the respondent was a grant of land revenue only and not a grant of the soil and since the Watan held by the respondent at the date of the coming into force of the Act was a Watan of land revenue, the respondent was entitled to compensation in the sum of Rs. 15, 074-4-0 under s. 6(2) of the Act.It is indeed difficult to understand as to why the State of Maharashtra should have preferred the present appeal at all. The judgment of the High Court was pre- eminently a correct judgment based on a careful appreciation of the evidence on record and it did no more than adopt a construction of the grant which had throughout been accepted as the correct construction by the Revenue officers over the last 75 years.The learned counsel appearing on behalf of the State of Maharashtra in fact found it impossible to assail the reasoning of the judgment. It is evident that the appeal was filed by the State of Maharashtra without giving much thought to the question and caring to enquire whether the judgment of the High Court suffered from any errors requiring to be corrected by a superior court.We do not think it is right that State Governments should lightly prefer an appeal in this Court against a decision given by the High Court unless they are satisfied, on careful consideration and proper scrutiny, that the decision is erroneous and public interest requires that it should be brought before a superior court for being corrected. The State Governments should not adopt a litigious approach and waste public revenues on fruitless and futile litigation where there - are no chances of success. It is unfortunately a fact that it costs quite a large sum of money to come to this Court and this Court has become untouchable and unapproachable by many litigants who can not afford the large expense involved in fighting a litigation in this Court. It is, therefore, all the more necessary that State Governments, which have public accountability in respect of their actions, should not lightly rush to this Court to challenge a judgment of the High Court which is plainly and manifestly correct and drag the opposite party in unnecessary expense, part of which would, in any event, not be compensated by award of cost. The present appeal is an instance of the kind of unnecessary and futile litigation which the State Governments can and should avoid. | 0 | 1,223 | 828 | ### 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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that the Watan was of land revenue only and not of the soil and he was, therefore, entitled to compensation as provided in s. 6(2) of the Act and filed a suit for recovery of Rs. 15, 074-4-0 by way of compensation against the State of Maharashtra in the Court of Civil Judge, Senior Division, Satara. The claim was decreed by the learned Civil Judge, Senior Division and on appeal by the State of Maharashtra the High Court affirmed the view taken by the learned Civil Judge, Senior Division. The High Court construed the Sanad granted by the British government in favour of the ancestors of the respondent in the light of the surrounding circumstances and particularly the entries contemporaneously made in the alienation register and came to the conclusion that the grant embodied in the Sanad was not a grant of the soil but was merely a grant of land revenue and the respondent was, therefore, entitled to claim compensation the basis laid down in s. 6(2) of the Act. The State of Maharashtra being aggrieved by the decree passed by the learned Civil Judge, Senior Division and affirmed by the High Court preferred the present appeal with special leave obtained from this Court.We have carefully gone through the judgment of the High Court and we find ourselves completely in agreement with the conclusion reached there. The judgment of the High Court is a well reasoned judgment and the learned counsel appearing on behalf of the State of Maharashtra has not been able to show any infirmity in it. The opening part of the Sanad clearly shows that it was issued in recognition of a grant which was already made in favour of the ancestors of the respondent. The Sanad undoubtedly used the word lands to describe the subject-matter of the grant, but the word land is defined in Bombay Act 2 of 1863 to include share of land revenue and this meaning should apply in the construction of the word land in the Sanad, since the Sanad was apparently granted pursuant to the enquiry made under Bombay Act 2 of 1863. The description of the subject matter of the grant as lands in the Sanad would not, therefore, necessarily indicate that it was a grant of the soil. In fact, this description standing alone would rather indicate that it was a grant of land revenue only, since grant of the soil would ordinarily be accompanied by words such as Darobast or Jal, Taru, Truna, Kastha and Pashan. Moreover, the entries contemporaneously made in the alienation register also showed that the grant referred to in the Sanad was a grant of land revenue only and not a grant of the soil. The High Court has discussed these entries and it is not necessary for us to reiterate what has been so ably said by the High Court. The earlier documents relied upon by the respondent have also been referred to by the High Court and they clearly go to show that the grant was of land revenue and not of the soil. This position was in fact accepted by the Revenue officers all throughout and that is evident from the ord er of the District Deputy Collector, Satara dated 19th August, 1937 (Ex. 28) and the decision dated 28th February, 1951 (Ex. 331) given by the Collector of North Satara allowing an appeal filed by the respondent. We are, therefore, of the view that the High Court was right in holding that the grant in favour of the ancestors of the respondent was a grant of land revenue only and not a grant of the soil and since the Watan held by the respondent at the date of the coming into force of the Act was a Watan of land revenue, the respondent was entitled to compensation in the sum of Rs. 15, 074-4-0 under s. 6(2) of the Act.It is indeed difficult to understand as to why the State of Maharashtra should have preferred the present appeal at all. The judgment of the High Court was pre- eminently a correct judgment based on a careful appreciation of the evidence on record and it did no more than adopt a construction of the grant which had throughout been accepted as the correct construction by the Revenue officers over the last 75 years.2.The learned counsel appearing on behalf of the State of Maharashtra in fact found it impossible to assail the reasoning of the judgment. It is evident that the appeal was filed by the State of Maharashtra without giving much thought to the question and caring to enquire whether the judgment of the High Court suffered from any errors requiring to be corrected by a superior court.3. We do not think it is right that State Governments should lightly prefer an appeal in this Court against a decision given by the High Court unless they are satisfied, on careful consideration and proper scrutiny, that the decision is erroneous and public interest requires that it should be brought before a superior court for being corrected. The State Governments should not adopt a litigious approach and waste public revenues on fruitless and futile litigation where there - are no chances of success. It is unfortunately a fact that it costs quite a large sum of money to come to this Court and this Court has become untouchable and unapproachable by many litigants who can not afford the large expense involved in fighting a litigation in this Court. It is, therefore, all the more necessary that State Governments, which have public accountability in respect of their actions, should not lightly rush to this Court to challenge a judgment of the High Court which is plainly and manifestly correct and drag the opposite party in unnecessary expense, part of which would, in any event, not be compensated by award of cost. The present appeal is an instance of the kind of unnecessary and futile litigation which the State Governments can and should avoid.4.
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0
### Explanation:
The judgment of the High Court is a well reasoned judgment and the learned counsel appearing on behalf of the State of Maharashtra has not been able to show any infirmity in it. The opening part of the Sanad clearly shows that it was issued in recognition of a grant which was already made in favour of the ancestors of the respondent. The Sanad undoubtedly used the word lands to describe the subject-matter of the grant, but the word land is defined in Bombay Act 2 of 1863 to include share of land revenue and this meaning should apply in the construction of the word land in the Sanad, since the Sanad was apparently granted pursuant to the enquiry made under Bombay Act 2 of 1863. The description of the subject matter of the grant as lands in the Sanad would not, therefore, necessarily indicate that it was a grant of the soil. In fact, this description standing alone would rather indicate that it was a grant of land revenue only, since grant of the soil would ordinarily be accompanied by words such as Darobast or Jal, Taru, Truna, Kastha and Pashan. Moreover, the entries contemporaneously made in the alienation register also showed that the grant referred to in the Sanad was a grant of land revenue only and not a grant of the soil. The High Court has discussed these entries and it is not necessary for us to reiterate what has been so ably said by the High Court. The earlier documents relied upon by the respondent have also been referred to by the High Court and they clearly go to show that the grant was of land revenue and not of the soil. This position was in fact accepted by the Revenue officers all throughout and that is evident from the ord er of the District Deputy Collector, Satara dated 19th August, 1937 (Ex. 28) and the decision dated 28th February, 1951 (Ex. 331) given by the Collector of North Satara allowing an appeal filed by the respondent. We are, therefore, of the view that the High Court was right in holding that the grant in favour of the ancestors of the respondent was a grant of land revenue only and not a grant of the soil and since the Watan held by the respondent at the date of the coming into force of the Act was a Watan of land revenue, the respondent was entitled to compensation in the sum of Rs. 15, 074-4-0 under s. 6(2) of the Act.It is indeed difficult to understand as to why the State of Maharashtra should have preferred the present appeal at all. The judgment of the High Court was pre- eminently a correct judgment based on a careful appreciation of the evidence on record and it did no more than adopt a construction of the grant which had throughout been accepted as the correct construction by the Revenue officers over the last 75 years.The learned counsel appearing on behalf of the State of Maharashtra in fact found it impossible to assail the reasoning of the judgment. It is evident that the appeal was filed by the State of Maharashtra without giving much thought to the question and caring to enquire whether the judgment of the High Court suffered from any errors requiring to be corrected by a superior court.We do not think it is right that State Governments should lightly prefer an appeal in this Court against a decision given by the High Court unless they are satisfied, on careful consideration and proper scrutiny, that the decision is erroneous and public interest requires that it should be brought before a superior court for being corrected. The State Governments should not adopt a litigious approach and waste public revenues on fruitless and futile litigation where there - are no chances of success. It is unfortunately a fact that it costs quite a large sum of money to come to this Court and this Court has become untouchable and unapproachable by many litigants who can not afford the large expense involved in fighting a litigation in this Court. It is, therefore, all the more necessary that State Governments, which have public accountability in respect of their actions, should not lightly rush to this Court to challenge a judgment of the High Court which is plainly and manifestly correct and drag the opposite party in unnecessary expense, part of which would, in any event, not be compensated by award of cost. The present appeal is an instance of the kind of unnecessary and futile litigation which the State Governments can and should avoid.
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Raruha Singh Vs. Achal Singh & Others | he held that the appellant had not acquired a right of easement for flowing the water over the aforesaid course. According to the trial judge the sluice at point M. 2 as alleged by the plaint had not been proved nor was he satisfied about the appellants case about the obstruction in 1954. On these findings the appellants claim for a two-fold injunction was dismissed.5. The appellant then took the matter before the Additional District Judge. The appellate court considered the evidence and found that the appellant had proved his case that the water was flowing through the red dotted line openly as alleged by the appellant. It also held that the obstruction pleaded by the appellant had been established. In dealing with the principal question about the acquisition of the right of easement the appellate court observed that the learned trial judge was patently in error in assuming that Panbharan had been constructed in 1953 A. D. In fact evidence showed that it had been constructed in Sambat 1953 and this mistake had clearly vitiated the whole of the reasoning of the learned trial judge. It appears from the judgment of the appellate court that this position was conceded by the respondents learned counsel. The appellate court also examined the question as to whether Khasra No. 137 is a Bharri or Bandhiya and on that question he made a finding in favour of the appellant after considering the material evidence led in the case. As a result of its findings the appellate court allowed the appeal and decreed the appellants claim.6. The respondents then took the matter to the High Court in appeal. The High Court examined the plaint and came to the conclusion that the flow into Khasra No. 137 through the field of the respondents was through a natural course and it also thought that from the said Bandhiya the water was taken to Khasra No. 254 again through natural course. The only artificial channel which the High Court assumed had been pleaded by the appellant was the one seasonally constructed at points M. 2 and M. 3 on the map. The High Court, therefore, came to the conclusion that the case fell under S. 17(c) of the Easements Act, and no right could therefore have been acquired by the appellant as alleged by him. Incidentally the High Court also considered the evidence and it appears it was inclined to take the view that the evidence adduced by the appellant was not satisfactory. On this view the High Court allowed the appeal and dismissed the appellants suit.7. Now it is plain that in assuming that the allegations made by the appellant in his plaint attracted the provisions of S. 17(c) of the Easements Act the High Court has made out an entirely new case for the respondents. We have already set out the allegations in the plaint in some detail and we have noticed that the issues framed both in the trial court as well as in the appellate court clearly assumed that the red dotted line on which the appellant relied was alleged by him in substance to be an artificial channel. It is on this footing that the appellants claim to have acquired a right by 40 years user was considered in both the courts. It was this claim which was disputed by the respondents and on which both the parties led evidence. Therefore, in our opinion, it was not open to the High Court to read the plaint and that too in a very technical manner and to hold that the courts below had completely misjudged the character of the appellants claim. Since the parties had proceeded to trial on the definite understanding that the channel through which the water flowed right up from the start up to the end was alleged to be an artificial channel it was too late for the respondents to suggest that the plaint should be strictly read and the provisions of s. 17(c) of the Easements Act should be invoked.8. Incidentally we may point out that the High Court should not have entered into the question of appreciating the evidence as it appears to have done in the last portion of its judgment. This Court has repeatedly pointed out that in second appeal the High Courts jurisdiction is confined to questions of law. In this particular case the District Court had pointed out that the trial court had made an obvious mistake in regard to the date of the construction of the Panbharan. After all the questions at issue had to be tried in the light of oral evidence and surrounding circumstances. In such a case, if the appellate Court recorded definite findings it was not open to the High Court to attempt to reappreciate that evidence. However, the decision of the High Court is based principally on the view that the High Court took about the application of S. 17(c) of the Easements Act to the allegations made by the appellant in the plaint; and as we have held in the circumstances of this case it was not open to the High Court to adopt such a course. If the channel represented by the red dotted line on the map was alleged to be an artificial channel there can be no doubt that S. 17(c) would be inapplicable.9. At the hearing of this appeal a preliminary objection was raised by the learned counsel for the respondents that leave should not have been granted because the appeal is against the decision of a single judge and the appellant did not avail himself of the right to make an appeal under the Letters Patent. Besides, it was urged that this Court usually does not, and should not, interfere with the decision of a single judge in a second appeal. There is considerable force in this contention. However, since leave has been granted we do not think we can or should virtually revoke the leave by accepting the preliminary objection. | 1[ds]7. Now it is plain that in assuming that the allegations made by the appellant in his plaint attracted the provisions of S. 17(c) of the Easements Act the High Court has made out an entirely new case for the respondents. We have already set out the allegations in the plaint in some detail and we have noticed that the issues framed both in the trial court as well as in the appellate court clearly assumed that the red dotted line on which the appellant relied was alleged by him in substance to be an artificial channel. It is on this footing that the appellants claim to have acquired a right by 40 years user was considered in both the courts. It was this claim which was disputed by the respondents and on which both the parties led evidence. Therefore, in our opinion, it was not open to the High Court to read the plaint and that too in a very technical manner and to hold that the courts below had completely misjudged the character of the appellants claim. Since the parties had proceeded to trial on the definite understanding that the channel through which the water flowed right up from the start up to the end was alleged to be an artificial channel it was too late for the respondents to suggest that the plaint should be strictly read and the provisions of s. 17(c) of the Easements Act should be invoked.8. Incidentally we may point out that the High Court should not have entered into the question of appreciating the evidence as it appears to have done in the last portion of its judgment. This Court has repeatedly pointed out that in second appeal the High Courts jurisdiction is confined to questions of law. In this particular case the District Court had pointed out that the trial court had made an obvious mistake in regard to the date of the construction of the Panbharan. After all the questions at issue had to be tried in the light of oral evidence and surrounding circumstances. In such a case, if the appellate Court recorded definite findings it was not open to the High Court to attempt to reappreciate that evidence. However, the decision of the High Court is based principally on the view that the High Court took about the application of S. 17(c) of the Easements Act to the allegations made by the appellant in the plaint; and as we have held in the circumstances of this case it was not open to the High Court to adopt such a course. If the channel represented by the red dotted line on the map was alleged to be an artificial channel there can be no doubt that S. 17(c) would be inapplicable.At the hearing of this appeal a preliminary objection was raised by the learned counsel for the respondents that leave should not have been granted because the appeal is against the decision of a single judge and the appellant did not avail himself of the right to make an appeal under the Letters Patent. Besides, it was urged that this Court usually does not, and should not, interfere with the decision of a single judge in a second appeal.There is considerable force in this contention. However, since leave has been granted we do not think we can or should virtually revoke the leave by accepting the preliminary objection. | 1 | 1,864 | 610 | ### 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:
he held that the appellant had not acquired a right of easement for flowing the water over the aforesaid course. According to the trial judge the sluice at point M. 2 as alleged by the plaint had not been proved nor was he satisfied about the appellants case about the obstruction in 1954. On these findings the appellants claim for a two-fold injunction was dismissed.5. The appellant then took the matter before the Additional District Judge. The appellate court considered the evidence and found that the appellant had proved his case that the water was flowing through the red dotted line openly as alleged by the appellant. It also held that the obstruction pleaded by the appellant had been established. In dealing with the principal question about the acquisition of the right of easement the appellate court observed that the learned trial judge was patently in error in assuming that Panbharan had been constructed in 1953 A. D. In fact evidence showed that it had been constructed in Sambat 1953 and this mistake had clearly vitiated the whole of the reasoning of the learned trial judge. It appears from the judgment of the appellate court that this position was conceded by the respondents learned counsel. The appellate court also examined the question as to whether Khasra No. 137 is a Bharri or Bandhiya and on that question he made a finding in favour of the appellant after considering the material evidence led in the case. As a result of its findings the appellate court allowed the appeal and decreed the appellants claim.6. The respondents then took the matter to the High Court in appeal. The High Court examined the plaint and came to the conclusion that the flow into Khasra No. 137 through the field of the respondents was through a natural course and it also thought that from the said Bandhiya the water was taken to Khasra No. 254 again through natural course. The only artificial channel which the High Court assumed had been pleaded by the appellant was the one seasonally constructed at points M. 2 and M. 3 on the map. The High Court, therefore, came to the conclusion that the case fell under S. 17(c) of the Easements Act, and no right could therefore have been acquired by the appellant as alleged by him. Incidentally the High Court also considered the evidence and it appears it was inclined to take the view that the evidence adduced by the appellant was not satisfactory. On this view the High Court allowed the appeal and dismissed the appellants suit.7. Now it is plain that in assuming that the allegations made by the appellant in his plaint attracted the provisions of S. 17(c) of the Easements Act the High Court has made out an entirely new case for the respondents. We have already set out the allegations in the plaint in some detail and we have noticed that the issues framed both in the trial court as well as in the appellate court clearly assumed that the red dotted line on which the appellant relied was alleged by him in substance to be an artificial channel. It is on this footing that the appellants claim to have acquired a right by 40 years user was considered in both the courts. It was this claim which was disputed by the respondents and on which both the parties led evidence. Therefore, in our opinion, it was not open to the High Court to read the plaint and that too in a very technical manner and to hold that the courts below had completely misjudged the character of the appellants claim. Since the parties had proceeded to trial on the definite understanding that the channel through which the water flowed right up from the start up to the end was alleged to be an artificial channel it was too late for the respondents to suggest that the plaint should be strictly read and the provisions of s. 17(c) of the Easements Act should be invoked.8. Incidentally we may point out that the High Court should not have entered into the question of appreciating the evidence as it appears to have done in the last portion of its judgment. This Court has repeatedly pointed out that in second appeal the High Courts jurisdiction is confined to questions of law. In this particular case the District Court had pointed out that the trial court had made an obvious mistake in regard to the date of the construction of the Panbharan. After all the questions at issue had to be tried in the light of oral evidence and surrounding circumstances. In such a case, if the appellate Court recorded definite findings it was not open to the High Court to attempt to reappreciate that evidence. However, the decision of the High Court is based principally on the view that the High Court took about the application of S. 17(c) of the Easements Act to the allegations made by the appellant in the plaint; and as we have held in the circumstances of this case it was not open to the High Court to adopt such a course. If the channel represented by the red dotted line on the map was alleged to be an artificial channel there can be no doubt that S. 17(c) would be inapplicable.9. At the hearing of this appeal a preliminary objection was raised by the learned counsel for the respondents that leave should not have been granted because the appeal is against the decision of a single judge and the appellant did not avail himself of the right to make an appeal under the Letters Patent. Besides, it was urged that this Court usually does not, and should not, interfere with the decision of a single judge in a second appeal. There is considerable force in this contention. However, since leave has been granted we do not think we can or should virtually revoke the leave by accepting the preliminary objection.
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1
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7. Now it is plain that in assuming that the allegations made by the appellant in his plaint attracted the provisions of S. 17(c) of the Easements Act the High Court has made out an entirely new case for the respondents. We have already set out the allegations in the plaint in some detail and we have noticed that the issues framed both in the trial court as well as in the appellate court clearly assumed that the red dotted line on which the appellant relied was alleged by him in substance to be an artificial channel. It is on this footing that the appellants claim to have acquired a right by 40 years user was considered in both the courts. It was this claim which was disputed by the respondents and on which both the parties led evidence. Therefore, in our opinion, it was not open to the High Court to read the plaint and that too in a very technical manner and to hold that the courts below had completely misjudged the character of the appellants claim. Since the parties had proceeded to trial on the definite understanding that the channel through which the water flowed right up from the start up to the end was alleged to be an artificial channel it was too late for the respondents to suggest that the plaint should be strictly read and the provisions of s. 17(c) of the Easements Act should be invoked.8. Incidentally we may point out that the High Court should not have entered into the question of appreciating the evidence as it appears to have done in the last portion of its judgment. This Court has repeatedly pointed out that in second appeal the High Courts jurisdiction is confined to questions of law. In this particular case the District Court had pointed out that the trial court had made an obvious mistake in regard to the date of the construction of the Panbharan. After all the questions at issue had to be tried in the light of oral evidence and surrounding circumstances. In such a case, if the appellate Court recorded definite findings it was not open to the High Court to attempt to reappreciate that evidence. However, the decision of the High Court is based principally on the view that the High Court took about the application of S. 17(c) of the Easements Act to the allegations made by the appellant in the plaint; and as we have held in the circumstances of this case it was not open to the High Court to adopt such a course. If the channel represented by the red dotted line on the map was alleged to be an artificial channel there can be no doubt that S. 17(c) would be inapplicable.At the hearing of this appeal a preliminary objection was raised by the learned counsel for the respondents that leave should not have been granted because the appeal is against the decision of a single judge and the appellant did not avail himself of the right to make an appeal under the Letters Patent. Besides, it was urged that this Court usually does not, and should not, interfere with the decision of a single judge in a second appeal.There is considerable force in this contention. However, since leave has been granted we do not think we can or should virtually revoke the leave by accepting the preliminary objection.
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SRI CHANAPPA NAGAPPA MUCHALAGODA Vs. DIVISIONAL MANAGER NEW INDIA INSURANCE COMPANY LIMITED | legs. As a consequence, the Appellant has got permanently incapacitated to pursue his vocation as a driver. This Court in Raj Kumar v. Ajay Kumar and Ors., (2011) 1 SCC 343. held that: 10. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of loss of future earnings, if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may. (emphasis supplied) 10. In K. Janardhan v. United India Insurance Co. Ltd., (2008) 8 SCC 518 this Court examined the loss of earning capacity in the case of a tanker driver who had met with an accident, and lost one of his legs due to amputation. The Commissioner for Workmens Compensation assessed the functional disability of the tanker driver as 100% and awarded compensation on that basis. The High Court however, referred to Schedule I to the Workmens Compensation Act, 1923, and held that loss of a leg on amputation resulted in only 60% loss of earning capacity. This Court set aside the judgment of the High Court, and held that since the workman could no longer earn his living as a tanker driver due to loss of one leg, the functional disability had to be assessed as 100%. In S. Suresh v. Oriental Insurance Co. Ltd. & Anr., (2010) 13 SCC 777 this Court held that : 8. … We are of the opinion that on account of amputation of his right leg below knee, he is rendered unfit for the work of a driver, which he was performing at the time of the accident resulting in the said disablement. Therefore, he has lost 100% of his earning capacity as a lorry driver, more so, when he is disqualified from even getting a driving license under the Motor Vehicles Act. (emphasis supplied) The aforesaid judgments are instructive for assessing the compensation payable to the Appellant in the present case. As a consequence of the accident, the Appellant has been incapacitated for life, since he can walk only with the help of a walking stick. He has lost the ability to work as a driver, as he would be disqualified from even getting a driving license. The prospect of securing any other manual labour job is not possible, since he would require the assistance of a person to ensure his mobility and manage his discomfort. As a consequence, the functional disability suffered by the Appellant must be assessed as 100%. 11. We affirm the judgment of the High Court on assessing the income of the Appellant at Rs. 4,000/- p.m. as per the evidence of his employer. The functional disability of the Appellant is assessed as 100%, and the relevant factor would be 201.66 as per Schedule IV to the Act. Consequently, the compensation payable to the Appellant would work out to Rs. 4,83,984/- under Section 4 of the Act. 12. We find that the Appellant has not been awarded any amount towards reimbursement of the medical expenses incurred by him, either by the Commissioner, or by the High Court. The Appellant underwent hospitalization for a period of 65 days for medical treatment and surgical operations. | 1[ds]It is the admitted position that the Appellant can no longer pursue his vocation as a driver of heavy vehicles. The medical evidence on record has corroborated his inability to stand for a long period of time, or even fold his legs. As a consequence, the Appellant has got permanently incapacitated to pursue his vocation as a driverThe aforesaid judgments are instructive for assessing the compensation payable to the Appellant in the present case. As a consequence of the accident, the Appellant has been incapacitated for life, since he can walk only with the help of a walking stick. He has lost the ability to work as a driver, as he would be disqualified from even getting a driving license. The prospect of securing any other manual labour job is not possible, since he would require the assistance of a person to ensure his mobility and manage his discomfort. As a consequence, the functional disability suffered by the Appellant must be assessed as 100%11. We affirm the judgment of the High Court on assessing the income of the Appellant at Rs. 4,000/- p.m. as per the evidence of his employer. The functional disability of the Appellant is assessed as 100%, and the relevant factor would be 201.66 as per Schedule IV to the Act. Consequently, the compensation payable to the Appellant would work out to Rs. 4,83,984/- under Section 4 of the Act12. We find that the Appellant has not been awarded any amount towards reimbursement of the medical expenses incurred by him, either by the Commissioner, or by the High Court. The Appellant underwent hospitalization for a period of 65 days for medical treatment and surgical operations. | 1 | 1,849 | 310 | ### 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:
legs. As a consequence, the Appellant has got permanently incapacitated to pursue his vocation as a driver. This Court in Raj Kumar v. Ajay Kumar and Ors., (2011) 1 SCC 343. held that: 10. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of loss of future earnings, if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may. (emphasis supplied) 10. In K. Janardhan v. United India Insurance Co. Ltd., (2008) 8 SCC 518 this Court examined the loss of earning capacity in the case of a tanker driver who had met with an accident, and lost one of his legs due to amputation. The Commissioner for Workmens Compensation assessed the functional disability of the tanker driver as 100% and awarded compensation on that basis. The High Court however, referred to Schedule I to the Workmens Compensation Act, 1923, and held that loss of a leg on amputation resulted in only 60% loss of earning capacity. This Court set aside the judgment of the High Court, and held that since the workman could no longer earn his living as a tanker driver due to loss of one leg, the functional disability had to be assessed as 100%. In S. Suresh v. Oriental Insurance Co. Ltd. & Anr., (2010) 13 SCC 777 this Court held that : 8. … We are of the opinion that on account of amputation of his right leg below knee, he is rendered unfit for the work of a driver, which he was performing at the time of the accident resulting in the said disablement. Therefore, he has lost 100% of his earning capacity as a lorry driver, more so, when he is disqualified from even getting a driving license under the Motor Vehicles Act. (emphasis supplied) The aforesaid judgments are instructive for assessing the compensation payable to the Appellant in the present case. As a consequence of the accident, the Appellant has been incapacitated for life, since he can walk only with the help of a walking stick. He has lost the ability to work as a driver, as he would be disqualified from even getting a driving license. The prospect of securing any other manual labour job is not possible, since he would require the assistance of a person to ensure his mobility and manage his discomfort. As a consequence, the functional disability suffered by the Appellant must be assessed as 100%. 11. We affirm the judgment of the High Court on assessing the income of the Appellant at Rs. 4,000/- p.m. as per the evidence of his employer. The functional disability of the Appellant is assessed as 100%, and the relevant factor would be 201.66 as per Schedule IV to the Act. Consequently, the compensation payable to the Appellant would work out to Rs. 4,83,984/- under Section 4 of the Act. 12. We find that the Appellant has not been awarded any amount towards reimbursement of the medical expenses incurred by him, either by the Commissioner, or by the High Court. The Appellant underwent hospitalization for a period of 65 days for medical treatment and surgical operations.
### Response:
1
### Explanation:
It is the admitted position that the Appellant can no longer pursue his vocation as a driver of heavy vehicles. The medical evidence on record has corroborated his inability to stand for a long period of time, or even fold his legs. As a consequence, the Appellant has got permanently incapacitated to pursue his vocation as a driverThe aforesaid judgments are instructive for assessing the compensation payable to the Appellant in the present case. As a consequence of the accident, the Appellant has been incapacitated for life, since he can walk only with the help of a walking stick. He has lost the ability to work as a driver, as he would be disqualified from even getting a driving license. The prospect of securing any other manual labour job is not possible, since he would require the assistance of a person to ensure his mobility and manage his discomfort. As a consequence, the functional disability suffered by the Appellant must be assessed as 100%11. We affirm the judgment of the High Court on assessing the income of the Appellant at Rs. 4,000/- p.m. as per the evidence of his employer. The functional disability of the Appellant is assessed as 100%, and the relevant factor would be 201.66 as per Schedule IV to the Act. Consequently, the compensation payable to the Appellant would work out to Rs. 4,83,984/- under Section 4 of the Act12. We find that the Appellant has not been awarded any amount towards reimbursement of the medical expenses incurred by him, either by the Commissioner, or by the High Court. The Appellant underwent hospitalization for a period of 65 days for medical treatment and surgical operations.
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Patiala Bus (Sirhind) Pvt. Ltd Vs. State Transport Appellate Tribunal Punjab & Others | justified in granting two permits with two return trips on regular basis on the route in question only to the Patiala Bus Service (P) Ltd., Sirhind. Rather it would have been most fair if he had granted one permit with one return trip each to the Patiala Bus Service (P) Ltd. Sirhind the Malwa Transport Company (P) Ltd. Barnala. Accordingly the impugned order is liable to be modified to that extent.The appellant thereupon preferred a writ petition in the High Court of Punjab and Haryana challenging the validity of the order of the State Transport Appellate Tribunal in so far as it reversed the order of the State Transport Commissioner granting two stage carriage permits to the appellant and directed that one stage carriage permit should be granted to the third respondent. The writ petition was, however, summarily rejected by a Division Bench of the High Court and an application for leave to appeal to this Court preferred before the High Court met with the same fate. The appellant, thereupon, obtained special leave from this Court and hence the present appeal by special leave.3. The main ground on which the appellant assailed the order of the State Transport Appellate Tribunal taking away one stage carriage permit and granting it to the third respondent was that the State Transport Appellate Tribunal failed to take into account various relevant considerations which must necessarily weigh with the authority in determining which out of several applicants should be granted stage carriage permit. These consideration, contended the appellant, are set out in Section 47 and the authority entrusted with the task of selecting an applicant for grant of stage carriage permit must have regard to these considerations in performing its task of the State Transport Appellate Tribunal, however, ignored these considerations and gave one stage carriage permit each to the appellant and the third respondent as if it were a bounty to be divided equally between the two claimants. This was clearly in breach of Section 47 and it vitiated the order of the State. Transport Appellate Tribunal. We think there is great force in this contention of the appellant. Section 47 lays down that a Regional Transport Authority shall, in considering an applicant for stage carriage permit, have regard to the following matters, namely:(a) the interests of the public generally;(b) the advantages to the public of the service to be provided, including the saving of time likely to be effected thereby and any convenience arising from journeys not being broken;(c) the adequacy of other passenger transport services operating or likely to operate in the near future, whether by road or other means, between the places to be served;(d) the benefit to any particular locality or localities likely to be afforded by the service;(e) the operation by the applicant of other transport services, including those in respect of which applications from him for permits are pending;(f) the condition of the roads included in the proposed route or area.The main considerations required to be taken into account are the interest of the public in general and the advantages to the public of the service to be provided, and these would include inter alia consideration of factors such as the experience of the rival claimants, their past performance, the availability of stand-by vehicles with them, their financial resources, the facility of well equipped workshop possessed by them etc. The State Transport Appellate Tribunal, however, failed to take into account any of these considerations and proceeded as if the stage carriage permits were a largesse to be divided fairly and equitably amongst the rival claimants. We do not find in the order of the State Transport Appellate Tribunal and discussion of the question as to what the interest of the public in general requires and who from amongst the rival claimants would be able to provide the most efficient and satisfactory service to the public. None of the relevant factors is considered, or even adverted to, by the State Transport Appellate Tribunal. The State Transport Appellate Tribunal merely seems to have considered what would be fair as between the appellant and the third respondent, but what does the interest of the public, which is to be provided with an efficient and satisfactory service, demand. The order of the State Transport Appellate Tribunal, therefore, suffered from an infirmity, in that it failed to take into account relevant considerations and proceeded on the basis of an irrelevant consideration. We must, in the circumstances, quash and set aside the order of the State Transport Appellate Tribunal in so far as it directed that one stage carriage permit with a return trip should be granted to each of the appellant and the third respondent. But while doing so we cannot allow the order of the State Transport Commissioner granting two stage carriage permits to the appellant to remain outstanding. The order of the State Transport Commissioner also suffers from the same infirmity as the order of the State Transport Appellate Tribunal. It does not take into account any of the relevant considerations which we have discussed above, but merely proceeds on the basis that two stage carriage permits should be granted to the appellant as the appellant has already been operating that mileage under two temporary stage carriage permits held by it. Now it is undoubtedly true that the fact that an appellant has already been operating on a route is a relevant consideration to be taken into account, but that cannot be the sole determining consideration. The order of the State Transport Commissioner granting two stage carriage permits to the appellant must also, therefore, be quashed and set aside and the matter should be remanded to the State Transport Commissioner for determining, having regard to the relevant considerations, as to how the two stage carriage permits should be granted: whether both should be granted to the appellant or both should be granted to the third respondent, or one should be granted to the appellant and the other to the third respondent. | 1[ds]3. The main ground on which the appellant assailed the order of the State Transport Appellate Tribunal taking away one stage carriage permit and granting it to the third respondent was that the State Transport Appellate Tribunal failed to take into account various relevant considerations which must necessarily weigh with the authority in determining which out of several applicants should be granted stage carriage permit. These consideration, contended the appellant, are set out in Section 47 and the authority entrusted with the task of selecting an applicant for grant of stage carriage permit must have regard to these considerations in performing its task of the State Transport Appellate Tribunal, however, ignored these considerations and gave one stage carriage permit each to the appellant and the third respondent as if it were a bounty to be divided equally between the two claimants. This was clearly in breach of Section 47 and it vitiated the order of the State. Transport Appellate Tribunal. We think there is great force in this contention of the appellant. Section 47 lays down that a Regional Transport Authority shall, in considering an applicant for stage carriage permit, have regard to the following matters, namely:(a) the interests of the public generally;(b) the advantages to the public of the service to be provided, including the saving of time likely to be effected thereby and any convenience arising from journeys not being broken;(c) the adequacy of other passenger transport services operating or likely to operate in the near future, whether by road or other means, between the places to be served;(d) the benefit to any particular locality or localities likely to be afforded by the service;(e) the operation by the applicant of other transport services, including those in respect of which applications from him for permits are pending;(f) the condition of the roads included in the proposed route or area.The main considerations required to be taken into account are the interest of the public in general and the advantages to the public of the service to be provided, and these would include inter alia consideration of factors such as the experience of the rival claimants, their past performance, the availability ofvehicles with them, their financial resources, the facility of well equipped workshop possessed by them etc. The State Transport Appellate Tribunal, however, failed to take into account any of these considerations and proceeded as if the stage carriage permits were a largesse to be divided fairly and equitably amongst the rival claimants. We do not find in the order of the State Transport Appellate Tribunal and discussion of the question as to what the interest of the public in general requires and who from amongst the rival claimants would be able to provide the most efficient and satisfactory service to the public. None of the relevant factors is considered, or even adverted to, by the State Transport Appellate Tribunal. The State Transport Appellate Tribunal merely seems to have considered what would be fair as between the appellant and the third respondent, but what does the interest of the public, which is to be provided with an efficient and satisfactory service, demand. The order of the State Transport Appellate Tribunal, therefore, suffered from an infirmity, in that it failed to take into account relevant considerations and proceeded on the basis of an irrelevant consideration. We must, in the circumstances, quash and set aside the order of the State Transport Appellate Tribunal in so far as it directed that one stage carriage permit with a return trip should be granted to each of the appellant and the third respondent. But while doing so we cannot allow the order of the State Transport Commissioner granting two stage carriage permits to the appellant to remain outstanding. The order of the State Transport Commissioner also suffers from the same infirmity as the order of the State Transport Appellate Tribunal. It does not take into account any of the relevant considerations which we have discussed above, but merely proceeds on the basis that two stage carriage permits should be granted to the appellant as the appellant has already been operating that mileage under two temporary stage carriage permits held by it. Now it is undoubtedly true that the fact that an appellant has already been operating on a route is a relevant consideration to be taken into account, but that cannot be the sole determining consideration. The order of the State Transport Commissioner granting two stage carriage permits to the appellant must also, therefore, be quashed and set aside and the matter should be remanded to the State Transport Commissioner for determining, having regard to the relevant considerations, as to how the two stage carriage permits should be granted: whether both should be granted to the appellant or both should be granted to the third respondent, or one should be granted to the appellant and the other to the third respondent. | 1 | 2,426 | 899 | ### 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:
justified in granting two permits with two return trips on regular basis on the route in question only to the Patiala Bus Service (P) Ltd., Sirhind. Rather it would have been most fair if he had granted one permit with one return trip each to the Patiala Bus Service (P) Ltd. Sirhind the Malwa Transport Company (P) Ltd. Barnala. Accordingly the impugned order is liable to be modified to that extent.The appellant thereupon preferred a writ petition in the High Court of Punjab and Haryana challenging the validity of the order of the State Transport Appellate Tribunal in so far as it reversed the order of the State Transport Commissioner granting two stage carriage permits to the appellant and directed that one stage carriage permit should be granted to the third respondent. The writ petition was, however, summarily rejected by a Division Bench of the High Court and an application for leave to appeal to this Court preferred before the High Court met with the same fate. The appellant, thereupon, obtained special leave from this Court and hence the present appeal by special leave.3. The main ground on which the appellant assailed the order of the State Transport Appellate Tribunal taking away one stage carriage permit and granting it to the third respondent was that the State Transport Appellate Tribunal failed to take into account various relevant considerations which must necessarily weigh with the authority in determining which out of several applicants should be granted stage carriage permit. These consideration, contended the appellant, are set out in Section 47 and the authority entrusted with the task of selecting an applicant for grant of stage carriage permit must have regard to these considerations in performing its task of the State Transport Appellate Tribunal, however, ignored these considerations and gave one stage carriage permit each to the appellant and the third respondent as if it were a bounty to be divided equally between the two claimants. This was clearly in breach of Section 47 and it vitiated the order of the State. Transport Appellate Tribunal. We think there is great force in this contention of the appellant. Section 47 lays down that a Regional Transport Authority shall, in considering an applicant for stage carriage permit, have regard to the following matters, namely:(a) the interests of the public generally;(b) the advantages to the public of the service to be provided, including the saving of time likely to be effected thereby and any convenience arising from journeys not being broken;(c) the adequacy of other passenger transport services operating or likely to operate in the near future, whether by road or other means, between the places to be served;(d) the benefit to any particular locality or localities likely to be afforded by the service;(e) the operation by the applicant of other transport services, including those in respect of which applications from him for permits are pending;(f) the condition of the roads included in the proposed route or area.The main considerations required to be taken into account are the interest of the public in general and the advantages to the public of the service to be provided, and these would include inter alia consideration of factors such as the experience of the rival claimants, their past performance, the availability of stand-by vehicles with them, their financial resources, the facility of well equipped workshop possessed by them etc. The State Transport Appellate Tribunal, however, failed to take into account any of these considerations and proceeded as if the stage carriage permits were a largesse to be divided fairly and equitably amongst the rival claimants. We do not find in the order of the State Transport Appellate Tribunal and discussion of the question as to what the interest of the public in general requires and who from amongst the rival claimants would be able to provide the most efficient and satisfactory service to the public. None of the relevant factors is considered, or even adverted to, by the State Transport Appellate Tribunal. The State Transport Appellate Tribunal merely seems to have considered what would be fair as between the appellant and the third respondent, but what does the interest of the public, which is to be provided with an efficient and satisfactory service, demand. The order of the State Transport Appellate Tribunal, therefore, suffered from an infirmity, in that it failed to take into account relevant considerations and proceeded on the basis of an irrelevant consideration. We must, in the circumstances, quash and set aside the order of the State Transport Appellate Tribunal in so far as it directed that one stage carriage permit with a return trip should be granted to each of the appellant and the third respondent. But while doing so we cannot allow the order of the State Transport Commissioner granting two stage carriage permits to the appellant to remain outstanding. The order of the State Transport Commissioner also suffers from the same infirmity as the order of the State Transport Appellate Tribunal. It does not take into account any of the relevant considerations which we have discussed above, but merely proceeds on the basis that two stage carriage permits should be granted to the appellant as the appellant has already been operating that mileage under two temporary stage carriage permits held by it. Now it is undoubtedly true that the fact that an appellant has already been operating on a route is a relevant consideration to be taken into account, but that cannot be the sole determining consideration. The order of the State Transport Commissioner granting two stage carriage permits to the appellant must also, therefore, be quashed and set aside and the matter should be remanded to the State Transport Commissioner for determining, having regard to the relevant considerations, as to how the two stage carriage permits should be granted: whether both should be granted to the appellant or both should be granted to the third respondent, or one should be granted to the appellant and the other to the third respondent.
### Response:
1
### Explanation:
3. The main ground on which the appellant assailed the order of the State Transport Appellate Tribunal taking away one stage carriage permit and granting it to the third respondent was that the State Transport Appellate Tribunal failed to take into account various relevant considerations which must necessarily weigh with the authority in determining which out of several applicants should be granted stage carriage permit. These consideration, contended the appellant, are set out in Section 47 and the authority entrusted with the task of selecting an applicant for grant of stage carriage permit must have regard to these considerations in performing its task of the State Transport Appellate Tribunal, however, ignored these considerations and gave one stage carriage permit each to the appellant and the third respondent as if it were a bounty to be divided equally between the two claimants. This was clearly in breach of Section 47 and it vitiated the order of the State. Transport Appellate Tribunal. We think there is great force in this contention of the appellant. Section 47 lays down that a Regional Transport Authority shall, in considering an applicant for stage carriage permit, have regard to the following matters, namely:(a) the interests of the public generally;(b) the advantages to the public of the service to be provided, including the saving of time likely to be effected thereby and any convenience arising from journeys not being broken;(c) the adequacy of other passenger transport services operating or likely to operate in the near future, whether by road or other means, between the places to be served;(d) the benefit to any particular locality or localities likely to be afforded by the service;(e) the operation by the applicant of other transport services, including those in respect of which applications from him for permits are pending;(f) the condition of the roads included in the proposed route or area.The main considerations required to be taken into account are the interest of the public in general and the advantages to the public of the service to be provided, and these would include inter alia consideration of factors such as the experience of the rival claimants, their past performance, the availability ofvehicles with them, their financial resources, the facility of well equipped workshop possessed by them etc. The State Transport Appellate Tribunal, however, failed to take into account any of these considerations and proceeded as if the stage carriage permits were a largesse to be divided fairly and equitably amongst the rival claimants. We do not find in the order of the State Transport Appellate Tribunal and discussion of the question as to what the interest of the public in general requires and who from amongst the rival claimants would be able to provide the most efficient and satisfactory service to the public. None of the relevant factors is considered, or even adverted to, by the State Transport Appellate Tribunal. The State Transport Appellate Tribunal merely seems to have considered what would be fair as between the appellant and the third respondent, but what does the interest of the public, which is to be provided with an efficient and satisfactory service, demand. The order of the State Transport Appellate Tribunal, therefore, suffered from an infirmity, in that it failed to take into account relevant considerations and proceeded on the basis of an irrelevant consideration. We must, in the circumstances, quash and set aside the order of the State Transport Appellate Tribunal in so far as it directed that one stage carriage permit with a return trip should be granted to each of the appellant and the third respondent. But while doing so we cannot allow the order of the State Transport Commissioner granting two stage carriage permits to the appellant to remain outstanding. The order of the State Transport Commissioner also suffers from the same infirmity as the order of the State Transport Appellate Tribunal. It does not take into account any of the relevant considerations which we have discussed above, but merely proceeds on the basis that two stage carriage permits should be granted to the appellant as the appellant has already been operating that mileage under two temporary stage carriage permits held by it. Now it is undoubtedly true that the fact that an appellant has already been operating on a route is a relevant consideration to be taken into account, but that cannot be the sole determining consideration. The order of the State Transport Commissioner granting two stage carriage permits to the appellant must also, therefore, be quashed and set aside and the matter should be remanded to the State Transport Commissioner for determining, having regard to the relevant considerations, as to how the two stage carriage permits should be granted: whether both should be granted to the appellant or both should be granted to the third respondent, or one should be granted to the appellant and the other to the third respondent.
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Indo Rama Synthetics Ltd Vs. Commissioner of Income Tax, New Delhi | the net profit as shown in the P & L Account, that entry cannot be said to be a credit to the P & L Account and, therefore, though the amount has been literally credited to the P & L Account, however, in substance there is no credit to P & L Account. MAT provisions were introduced as number of zero tax companies had grown. It was found that companies had earned substantial book profits and had paid huge dividends but paid no tax. In the present case, had the assessee deducted the full depreciation from the profit before depreciation during the accounting year ending 31.3.2001, it would have shown a loss and in which event it could not have paid the dividends and, therefore, the assessee credited the amount to the extent of the additional depreciation from the revaluation reserve to present a more healthy balance sheet to its shareholders enabling the assessee possibly to pay out a good dividend. It is precisely to tax these kinds of companies that MAT provisions had been introduced. The object of MAT provisions is to bring out the real profit of the companies. The thrust is to find out the real working results of the company. Thus, the reduction sought by the assessee under Clause (i) to the explanation to Section 115JB(2) in respect of depreciation has been rightly rejected by the AO. 20.Take the facts of the present case. As stated above, the revaluation reserve of Rs. 2,88,58,19,000/- was created during earlier assessment year 2000-01. During the accounting year ending 31.3.2001 (assessment year 2001-02), the profits of assessee stood at Rs. 1,20,18,97,000/- whereas depreciation stood at Rs. 1,27,57,06,000/-. Depreciation is a no-cash charge against the profits. Thus, company had a loss of Rs. 7,38,09,000/- (i.e. Rs. 1,27,57,06,000/- of depreciation as against profit of Rs. 1,20,18,97,000/-). However, by withdrawing Rs. 26,11,74,000/-, being the differential depreciation, from the revaluation reserve of Rs. 2,88,58,19,000/- (which is only a notional adjustment entry to balance both sides of the balance sheet) and reducing it from the depreciation of Rs. 1,27,57,06,000/-, the assessee artificially brings down the depreciation only to Rs. 1,01,45,32,000/- which is then deducted from the profits before depreciation amounting to Rs. 1,20,18,97,000/- so that there is a profit of Rs. 18,73,65,000/-. This is how the loss of Rs. 7,38,09,000 got converted to profit of Rs. 18,73,65,000/-. Thus, the financial statement for the year ending 31.3.2001 is made to look healthy. 21.The reasons given hereinabove are in addition to the reasons given by the Authorities below while rejecting the claim of the assessee. 22.The matter could be examined from another angle. To recapitulate the facts, the fixed assets of the assessee were revalued in the earlier assessment year 2000-01 (i.e. financial year ending 31.3.2000) and amount of enhancement in valuation was Rs. 2,88,58,19,000/- which was credited to the revaluation reserve. In other words, at the time of revaluation of assets, the said figure of Rs. 2,88,58,19,000/- was added to the historical cost of assets on the asset side of the balance sheet and in order to equalize both sides of the balance sheet the revaluation reserve to that extent was created on the liability side. Thus, the figure of profit remained untouched so far as the revaluation of assets to the tune of Rs. 2,88,58,19,000/- is concerned. The profits were not increased by the said amount when the asset was revalued. During the assessment year in question, i.e., assessment year 2001-02, an amount of Rs. 26,11,74,000/-, being the differential depreciation, was transferred out of the said revaluation reserve of Rs. 2,88,58,19,000/- and credited to the P & L Account which the A.O. disallowed by placing reliance on the proviso to Clause (i) of the explanation to Section 115JB(2). Consequently, the A.O. added back the said amount of Rs. 26,11,74,000/- to the net profits. We agree with the A.O. Under the provisions, as they then existed, certain adjustments were required to be made to the net profit as shown in the P & L Account. One such adjustment stipulated that the net profit shall be reduced by the amount(s) withdrawn from any reserves, if any such amount is credited to the P & L Account. Thus, if the reserves created had gone to increase the book profits in any year when the provisions of Section 115JB were applicable, the assessee became entitled to reduce the amount withdrawn from such reserves if such withdrawal is credited to P & L Account. Now, from the above facts, it is clear that neither the said amount of Rs. 2,88,58,19,000/- nor Rs. 26,11,74,000/- had ever gone to increase the book profits in the said year ending 31.3.2000 (being the financial year). Thus, when such amount(s) has not gone to increase the book value at the time of creation of reserve(s), there is no question of reducing the amount transferred from such revaluation reserves to the P & L Account. Thus, the proviso to clause (i) of the explanation to Section 115JB(2) comes in the way of the claim for reduction made by the assessee. In our view, the reduction under Clause (i) to the explanation could have been availed only if such revaluation reserve had gone to increase the book profits. As the amount of revaluation reserves had not gone to increase the book profits at the time it was created, the benefit of reduction cannot be allowed. One more fact needs to be highlighted. In this case, as indicated above, the revaluation reserve stood created during the earlier assessment year 2000-01. It has been vehemently argued on behalf of the assessee that creation of such reserve did not impact the profits of that year. The facts enumerated hereinabove shows that though the profit was not impacted, depreciation as the head of A/c was impacted. By inter play of the balance sheet items with Profit & Loss A/c items the assessee, as stated above, has sought to project the loss of Rs. 7,38,09,000/- as profit of Rs. 18,73,65,000/-. Conclusion 23.For | 0[ds]the fixed assets of the assessee were revalued in the earlier assessment year 2000-01 (i.e. financial year ending 31.3.2000) and amount of enhancement in valuation was Rs. 2,88,58,19,000/- which was credited to the revaluation reserve. In other words, at the time of revaluation of assets, the said figure of Rs. 2,88,58,19,000/- was added to the historical cost of assets on the asset side of the balance sheet and in order to equalize both sides of the balance sheet the revaluation reserve to that extent was created on the liability side. Thus, the figure of profit remained untouched so far as the revaluation of assets to the tune of Rs. 2,88,58,19,000/- is concerned. The profits were not increased by the said amount when the asset was revalued. During the assessment year in question, i.e., assessment year 2001-02, an amount of Rs. 26,11,74,000/-, being the differential depreciation, was transferred out of the said revaluation reserve of Rs. 2,88,58,19,000/- and credited to the P & L Account which the A.O. disallowed by placing reliance on the proviso to Clause (i) of the explanation to Section 115JB(2). Consequently, the A.O. added back the said amount of Rs. 26,11,74,000/- to the net profits. We agree with the A.O. Under the provisions, as they then existed, certain adjustments were required to be made to the net profit as shown in the P & L Account. One such adjustment stipulated that the net profit shall be reduced by the amount(s) withdrawn from any reserves, if any such amount is credited to the P & L Account. Thus, if the reserves created had gone to increase the book profits in any year when the provisions of Section 115JB were applicable, the assessee became entitled to reduce the amount withdrawn from such reserves if such withdrawal is credited to P & L Account. Now, from the above facts, it is clear that neither the said amount of Rs. 2,88,58,19,000/- nor Rs. 26,11,74,000/- had ever gone to increase the book profits in the said year ending 31.3.2000 (being the financial year). Thus, when such amount(s) has not gone to increase the book value at the time of creation of reserve(s), there is no question of reducing the amount transferred from such revaluation reserves to the P & L Account. Thus, the proviso to clause (i) of the explanation to Section 115JB(2) comes in the way of the claim for reduction made by the assessee. In our view, the reduction under Clause (i) to the explanation could have been availed only if such revaluation reserve had gone to increase the book profits. As the amount of revaluation reserves had not gone to increase the book profits at the time it was created, the benefit of reduction cannot be allowed. One more fact needs to be highlighted. In this case, as indicated above, the revaluation reserve stood created during the earlier assessment year 2000-01. It has been vehemently argued on behalf of the assessee that creation of such reserve did not impact the profits of that year. The facts enumerated hereinabove shows that though the profit was not impacted, depreciation as the head of A/c was impacted. By inter play of the balance sheet items with Profit & Loss A/c items the assessee, as stated above, has sought to project the loss of Rs. 7,38,09,000/- as profit of Rs. 18,73,65,000/-. | 0 | 4,514 | 647 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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the net profit as shown in the P & L Account, that entry cannot be said to be a credit to the P & L Account and, therefore, though the amount has been literally credited to the P & L Account, however, in substance there is no credit to P & L Account. MAT provisions were introduced as number of zero tax companies had grown. It was found that companies had earned substantial book profits and had paid huge dividends but paid no tax. In the present case, had the assessee deducted the full depreciation from the profit before depreciation during the accounting year ending 31.3.2001, it would have shown a loss and in which event it could not have paid the dividends and, therefore, the assessee credited the amount to the extent of the additional depreciation from the revaluation reserve to present a more healthy balance sheet to its shareholders enabling the assessee possibly to pay out a good dividend. It is precisely to tax these kinds of companies that MAT provisions had been introduced. The object of MAT provisions is to bring out the real profit of the companies. The thrust is to find out the real working results of the company. Thus, the reduction sought by the assessee under Clause (i) to the explanation to Section 115JB(2) in respect of depreciation has been rightly rejected by the AO. 20.Take the facts of the present case. As stated above, the revaluation reserve of Rs. 2,88,58,19,000/- was created during earlier assessment year 2000-01. During the accounting year ending 31.3.2001 (assessment year 2001-02), the profits of assessee stood at Rs. 1,20,18,97,000/- whereas depreciation stood at Rs. 1,27,57,06,000/-. Depreciation is a no-cash charge against the profits. Thus, company had a loss of Rs. 7,38,09,000/- (i.e. Rs. 1,27,57,06,000/- of depreciation as against profit of Rs. 1,20,18,97,000/-). However, by withdrawing Rs. 26,11,74,000/-, being the differential depreciation, from the revaluation reserve of Rs. 2,88,58,19,000/- (which is only a notional adjustment entry to balance both sides of the balance sheet) and reducing it from the depreciation of Rs. 1,27,57,06,000/-, the assessee artificially brings down the depreciation only to Rs. 1,01,45,32,000/- which is then deducted from the profits before depreciation amounting to Rs. 1,20,18,97,000/- so that there is a profit of Rs. 18,73,65,000/-. This is how the loss of Rs. 7,38,09,000 got converted to profit of Rs. 18,73,65,000/-. Thus, the financial statement for the year ending 31.3.2001 is made to look healthy. 21.The reasons given hereinabove are in addition to the reasons given by the Authorities below while rejecting the claim of the assessee. 22.The matter could be examined from another angle. To recapitulate the facts, the fixed assets of the assessee were revalued in the earlier assessment year 2000-01 (i.e. financial year ending 31.3.2000) and amount of enhancement in valuation was Rs. 2,88,58,19,000/- which was credited to the revaluation reserve. In other words, at the time of revaluation of assets, the said figure of Rs. 2,88,58,19,000/- was added to the historical cost of assets on the asset side of the balance sheet and in order to equalize both sides of the balance sheet the revaluation reserve to that extent was created on the liability side. Thus, the figure of profit remained untouched so far as the revaluation of assets to the tune of Rs. 2,88,58,19,000/- is concerned. The profits were not increased by the said amount when the asset was revalued. During the assessment year in question, i.e., assessment year 2001-02, an amount of Rs. 26,11,74,000/-, being the differential depreciation, was transferred out of the said revaluation reserve of Rs. 2,88,58,19,000/- and credited to the P & L Account which the A.O. disallowed by placing reliance on the proviso to Clause (i) of the explanation to Section 115JB(2). Consequently, the A.O. added back the said amount of Rs. 26,11,74,000/- to the net profits. We agree with the A.O. Under the provisions, as they then existed, certain adjustments were required to be made to the net profit as shown in the P & L Account. One such adjustment stipulated that the net profit shall be reduced by the amount(s) withdrawn from any reserves, if any such amount is credited to the P & L Account. Thus, if the reserves created had gone to increase the book profits in any year when the provisions of Section 115JB were applicable, the assessee became entitled to reduce the amount withdrawn from such reserves if such withdrawal is credited to P & L Account. Now, from the above facts, it is clear that neither the said amount of Rs. 2,88,58,19,000/- nor Rs. 26,11,74,000/- had ever gone to increase the book profits in the said year ending 31.3.2000 (being the financial year). Thus, when such amount(s) has not gone to increase the book value at the time of creation of reserve(s), there is no question of reducing the amount transferred from such revaluation reserves to the P & L Account. Thus, the proviso to clause (i) of the explanation to Section 115JB(2) comes in the way of the claim for reduction made by the assessee. In our view, the reduction under Clause (i) to the explanation could have been availed only if such revaluation reserve had gone to increase the book profits. As the amount of revaluation reserves had not gone to increase the book profits at the time it was created, the benefit of reduction cannot be allowed. One more fact needs to be highlighted. In this case, as indicated above, the revaluation reserve stood created during the earlier assessment year 2000-01. It has been vehemently argued on behalf of the assessee that creation of such reserve did not impact the profits of that year. The facts enumerated hereinabove shows that though the profit was not impacted, depreciation as the head of A/c was impacted. By inter play of the balance sheet items with Profit & Loss A/c items the assessee, as stated above, has sought to project the loss of Rs. 7,38,09,000/- as profit of Rs. 18,73,65,000/-. Conclusion 23.For
### Response:
0
### Explanation:
the fixed assets of the assessee were revalued in the earlier assessment year 2000-01 (i.e. financial year ending 31.3.2000) and amount of enhancement in valuation was Rs. 2,88,58,19,000/- which was credited to the revaluation reserve. In other words, at the time of revaluation of assets, the said figure of Rs. 2,88,58,19,000/- was added to the historical cost of assets on the asset side of the balance sheet and in order to equalize both sides of the balance sheet the revaluation reserve to that extent was created on the liability side. Thus, the figure of profit remained untouched so far as the revaluation of assets to the tune of Rs. 2,88,58,19,000/- is concerned. The profits were not increased by the said amount when the asset was revalued. During the assessment year in question, i.e., assessment year 2001-02, an amount of Rs. 26,11,74,000/-, being the differential depreciation, was transferred out of the said revaluation reserve of Rs. 2,88,58,19,000/- and credited to the P & L Account which the A.O. disallowed by placing reliance on the proviso to Clause (i) of the explanation to Section 115JB(2). Consequently, the A.O. added back the said amount of Rs. 26,11,74,000/- to the net profits. We agree with the A.O. Under the provisions, as they then existed, certain adjustments were required to be made to the net profit as shown in the P & L Account. One such adjustment stipulated that the net profit shall be reduced by the amount(s) withdrawn from any reserves, if any such amount is credited to the P & L Account. Thus, if the reserves created had gone to increase the book profits in any year when the provisions of Section 115JB were applicable, the assessee became entitled to reduce the amount withdrawn from such reserves if such withdrawal is credited to P & L Account. Now, from the above facts, it is clear that neither the said amount of Rs. 2,88,58,19,000/- nor Rs. 26,11,74,000/- had ever gone to increase the book profits in the said year ending 31.3.2000 (being the financial year). Thus, when such amount(s) has not gone to increase the book value at the time of creation of reserve(s), there is no question of reducing the amount transferred from such revaluation reserves to the P & L Account. Thus, the proviso to clause (i) of the explanation to Section 115JB(2) comes in the way of the claim for reduction made by the assessee. In our view, the reduction under Clause (i) to the explanation could have been availed only if such revaluation reserve had gone to increase the book profits. As the amount of revaluation reserves had not gone to increase the book profits at the time it was created, the benefit of reduction cannot be allowed. One more fact needs to be highlighted. In this case, as indicated above, the revaluation reserve stood created during the earlier assessment year 2000-01. It has been vehemently argued on behalf of the assessee that creation of such reserve did not impact the profits of that year. The facts enumerated hereinabove shows that though the profit was not impacted, depreciation as the head of A/c was impacted. By inter play of the balance sheet items with Profit & Loss A/c items the assessee, as stated above, has sought to project the loss of Rs. 7,38,09,000/- as profit of Rs. 18,73,65,000/-.
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Mohmedrafiq Husenmiya Thakor and Others Vs. State of Gujarat | for offences ranging from Section 302 IPC to Sections 3 and 4(4) of the TADA Act. However, the learned Judge of the Designated Court found that prosecution succeeded in proving that the nine appellants had committed the offence under Section 302 read with Section 149 IPC, but could not prove any other offence. Accordingly, the nine appellants were convicted and sentenced as aforesaid 4. Girishbhai sustained a large number of injuries from the pate of his head up to the tibial malleolus of his legs. Such injuries included lacerated wounds involving his skull and brain and incised wounds involving other vital organs. Details of the wounds have been described by Dr. Mohd. Ihyas (PW 1) in the post-mortem certificate. It is not necessary to reproduce the details of those injuries here because it is not disputed before us that Girishbhai was mangled brutally and fatally on the night of 27-3-1990 by being attacked with lethal weapons. The main point raised before us by Shri U. R. Lalit, learned Senior Counsel, is that evidence in this case is too meagre to establish that the appellants were among the assailants 5. We have no doubt that PW 5 and PW 6 have seen the occurrence, at least the beginning of it. PW 3 who gave FIR on the same night had given a narration in it that Girishbhai went in the company of PW 5 and PW 6 after alighting from the bus and later PW 3 came to know that Girishbhai became victim of a violent attack and then he rushed to the scene and on the way he came across PW 5 and PW 6 who gave him a curt summary of the plight of Girishbhai. Moreover, PW 5 and PW 6 were also subjected to an assault in the incident and they too sustained, though very minor, some injuries. We have no reason to think that PW 5 and PW 6 would have falsely testified that they witnessed the first part of the occurrence. We are satisfied, on a perusal of their testimony that the trial court has rightly placed reliance on the testimony of those two witnesses 6. PW 4 (Anil Kumar) is another witness who said that he saw a part of the occurrence. His version is that while he was proceeding to the godown of his uncle he happened to see the deceased in the company of Jitubhai (PW 5) and Nathubhai (PW 6). As they were proceeding near Rafiq Pan Centre, PW 4 saw some persons emerging from ambush near the cabin situated on the roadside, armed with weapons and attacking the deceased Girishbhai. PW 4 took to his heels and reached the house of the Sarpanch (PW 3) and conveyed to him the frightening news. It is pertinent to note in this context that PW 3 has also said that he came to know of the incident first when Anil Kumar (PW 4) told him about it at his house. The learned trial Judge has found the testimony of PW 4 quite reliable and we have no reason to dissent from it 7. From the account given by PW 4, PW 5 and PW 6, we have no doubt that the assailants who attacked the deceased were far more than five in number who formed themselves into an unlawful assembly whose common object was to finish off Girishbhai 8. But the crucial question is whether the appellants, or any one of them, were members of the unlawful assembly. If it was so, the conviction and sentence passed by the trial court on such of them, are liable to be upheld 9. The nine appellants are A-42 (Mohmedrafiq), A-43 (Mehboobmiya Lalmiya), A-44 (Mohmed Hanif), A-45 (Imtyaz Ibraham), A-46 (Idrisbhai Gafoorbhai), A-47 (Isamiya Alimiya), A-48 (Basirmiya Insammiya), A-49 (Mahemudmiya Isamiya) and A-58 (Mohmedmiya alias Mamlo Salimmiya) 10. PW 5 (Jitubhai) has identified during trial stage all the nine participants in the crime but PW 6 (Nathubhai) has identified only A-42 (Mohmedrafiq), A-45 (Jmtyaz Ibraham), A-46 (Idrisbhai Gafoorbhai), A-49 (Mahemudmiya Isamiya) and A-58 (Mohmedmiya) as the assailants. We have no difficulty in concurring with the finding of the trial court that those five persons were members of the unlawful assembly. Anil Kumar (PW 4) has also said that A-42, A-45 and A-58 were participants in the incident. But no other witness has supported the version of PW 5 that A-44 (Mohmed Hanif) and A-48 (Basirmiya Insammiya) were also the assailants 11. Of course, PW 4 has deposed that he identified Mahemudmiya and Isamiya also among the assailants but we have difficulty in this case for fixing up those two persons as A-43 and A-47 because among the 63 accused, there are two other persons also bearing the same names. They are A-53 (Maheboobmiya Akbarmiya) and A-1 (Isamiya Mirsabmiya). As PW 4 in his deposition has described the said two accused by the names "Mahboobmiya" and "Isamiya" without any further prefix or suffix, the reference made by the witness could as well apply to A-53 and A-1 also instead of A-43 and A-47. There is a real doubt regarding the identity of the accused as to whether PW 4 would have meant A-53 when he said the name "Mahmoobmiya" and A-1 when he said the name "Isamiya". We are inclined to extend the benefit of that reasonable doubt to A-43 and A-47 12. We wish to utilise this opportunity to impress upon the trial courts of the need to indicate the rank of the accused, besides using the name, while recording evidence in cases involving multiplicity of accused. It would be profitable for the High Courts to issue circulars to the trial courts to implement this practical suggestion to avoid possible miscarriage of justice resulting solely on account of defective and truncated recording of evidence in criminal cases involving many accused. It is a necessity for the appellate and revisional courts since such courts have to exercise jurisdiction only h with the help of records of the case | 1[ds]We have no reason to think that PW 5 and PW 6 would have falsely testified that they witnessed the first part of the occurrence. We are satisfied, on a perusal of their testimony that the trial court has rightly placed reliance on the testimony of those two witnesses6. PW 4 (Anil Kumar) is another witness who said that he saw a part of the occurrence. His version is that while he was proceeding to the godown of his uncle he happened to see the deceased in the company of Jitubhai (PW 5) and Nathubhai (PW 6). As they were proceeding near Rafiq Pan Centre, PW 4 saw some persons emerging from ambush near the cabin situated on the roadside, armed with weapons and attacking the deceased Girishbhai. PW 4 took to his heels and reached the house of the Sarpanch (PW 3) and conveyed to him the frightening news. It is pertinent to note in this context that PW 3 has also said that he came to know of the incident first when Anil Kumar (PW 4) told him about it at his house. The learned trial Judge has found the testimony of PW 4 quite reliable and we have no reason to dissent from it7. From the account given by PW 4, PW 5 and PW 6, we have no doubt that the assailants who attacked the deceased were far more than five in number who formed themselves into an unlawful assembly whose common object was to finish off Girishbhai8. But the crucial question is whether the appellants, or any one of them, were members of the unlawful assembly.If it was so, the conviction and sentence passed by the trial court on such of them, are liable to be upheld9. The nine appellants are2 (Mohmedrafiq),3 (Mehboobmiya Lalmiya),4 (Mohmed Hanif),5 (Imtyaz Ibraham),6 (Idrisbhai Gafoorbhai),7 (Isamiya Alimiya),8 (Basirmiya Insammiya),9 (Mahemudmiya Isamiya) and8 (Mohmedmiya alias Mamlo Salimmiya)10. PW 5 (Jitubhai) has identified during trial stage all the nine participants in the crime but PW 6 (Nathubhai) has identified only2 (Mohmedrafiq),5 (Jmtyaz Ibraham),6 (Idrisbhai Gafoorbhai),9 (Mahemudmiya Isamiya) and8 (Mohmedmiya) as the assailants. We have no difficulty in concurring with the finding of the trial court that those five persons were members of the unlawful assembly. Anil Kumar (PW 4) has also said that5 and8 were participants in the incident. But no other witness has supported the version of PW 5 that4 (Mohmed Hanif) and8 (Basirmiya Insammiya)were alsothe assailants11. Of course, PW 4 has deposed that he identified Mahemudmiya and Isamiya also amongthe assailantsbut we have difficulty in this case for fixing up those two persons as3 and7 because among the 63 accused, there are two other persons also bearing the same names. They are3 (Maheboobmiya Akbarmiya) and1 (Isamiya Mirsabmiya). As PW 4 in his deposition has described the said two accused by the names "Mahboobmiya" and "Isamiya" without any further prefix or suffix, the reference made by the witness could as well apply to3 and1 also instead of3 and. There is a real doubt regarding the identity of the accused as to whether PW 4 would have meant3 when he said the name "Mahmoobmiya" and1 when he said the name "Isamiya". We are inclined to extend the benefit of that reasonable doubt to12. We wish to utilise this opportunity to impress upon the trial courts of the need to indicate the rank of the accused, besides using the name, while recording evidence in cases involving multiplicity of accused. It would be profitable for the High Courts to issue circulars to the trial courts to implement this practical suggestion to avoid possible miscarriage of justice resulting solely on account of defective and truncated recording of evidence in criminal cases involving many accused. It is a necessity for the appellate and revisional courts since such courts have to exercise jurisdiction only h with the help of records of the case | 1 | 1,787 | 758 | ### Instruction:
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for offences ranging from Section 302 IPC to Sections 3 and 4(4) of the TADA Act. However, the learned Judge of the Designated Court found that prosecution succeeded in proving that the nine appellants had committed the offence under Section 302 read with Section 149 IPC, but could not prove any other offence. Accordingly, the nine appellants were convicted and sentenced as aforesaid 4. Girishbhai sustained a large number of injuries from the pate of his head up to the tibial malleolus of his legs. Such injuries included lacerated wounds involving his skull and brain and incised wounds involving other vital organs. Details of the wounds have been described by Dr. Mohd. Ihyas (PW 1) in the post-mortem certificate. It is not necessary to reproduce the details of those injuries here because it is not disputed before us that Girishbhai was mangled brutally and fatally on the night of 27-3-1990 by being attacked with lethal weapons. The main point raised before us by Shri U. R. Lalit, learned Senior Counsel, is that evidence in this case is too meagre to establish that the appellants were among the assailants 5. We have no doubt that PW 5 and PW 6 have seen the occurrence, at least the beginning of it. PW 3 who gave FIR on the same night had given a narration in it that Girishbhai went in the company of PW 5 and PW 6 after alighting from the bus and later PW 3 came to know that Girishbhai became victim of a violent attack and then he rushed to the scene and on the way he came across PW 5 and PW 6 who gave him a curt summary of the plight of Girishbhai. Moreover, PW 5 and PW 6 were also subjected to an assault in the incident and they too sustained, though very minor, some injuries. We have no reason to think that PW 5 and PW 6 would have falsely testified that they witnessed the first part of the occurrence. We are satisfied, on a perusal of their testimony that the trial court has rightly placed reliance on the testimony of those two witnesses 6. PW 4 (Anil Kumar) is another witness who said that he saw a part of the occurrence. His version is that while he was proceeding to the godown of his uncle he happened to see the deceased in the company of Jitubhai (PW 5) and Nathubhai (PW 6). As they were proceeding near Rafiq Pan Centre, PW 4 saw some persons emerging from ambush near the cabin situated on the roadside, armed with weapons and attacking the deceased Girishbhai. PW 4 took to his heels and reached the house of the Sarpanch (PW 3) and conveyed to him the frightening news. It is pertinent to note in this context that PW 3 has also said that he came to know of the incident first when Anil Kumar (PW 4) told him about it at his house. The learned trial Judge has found the testimony of PW 4 quite reliable and we have no reason to dissent from it 7. From the account given by PW 4, PW 5 and PW 6, we have no doubt that the assailants who attacked the deceased were far more than five in number who formed themselves into an unlawful assembly whose common object was to finish off Girishbhai 8. But the crucial question is whether the appellants, or any one of them, were members of the unlawful assembly. If it was so, the conviction and sentence passed by the trial court on such of them, are liable to be upheld 9. The nine appellants are A-42 (Mohmedrafiq), A-43 (Mehboobmiya Lalmiya), A-44 (Mohmed Hanif), A-45 (Imtyaz Ibraham), A-46 (Idrisbhai Gafoorbhai), A-47 (Isamiya Alimiya), A-48 (Basirmiya Insammiya), A-49 (Mahemudmiya Isamiya) and A-58 (Mohmedmiya alias Mamlo Salimmiya) 10. PW 5 (Jitubhai) has identified during trial stage all the nine participants in the crime but PW 6 (Nathubhai) has identified only A-42 (Mohmedrafiq), A-45 (Jmtyaz Ibraham), A-46 (Idrisbhai Gafoorbhai), A-49 (Mahemudmiya Isamiya) and A-58 (Mohmedmiya) as the assailants. We have no difficulty in concurring with the finding of the trial court that those five persons were members of the unlawful assembly. Anil Kumar (PW 4) has also said that A-42, A-45 and A-58 were participants in the incident. But no other witness has supported the version of PW 5 that A-44 (Mohmed Hanif) and A-48 (Basirmiya Insammiya) were also the assailants 11. Of course, PW 4 has deposed that he identified Mahemudmiya and Isamiya also among the assailants but we have difficulty in this case for fixing up those two persons as A-43 and A-47 because among the 63 accused, there are two other persons also bearing the same names. They are A-53 (Maheboobmiya Akbarmiya) and A-1 (Isamiya Mirsabmiya). As PW 4 in his deposition has described the said two accused by the names "Mahboobmiya" and "Isamiya" without any further prefix or suffix, the reference made by the witness could as well apply to A-53 and A-1 also instead of A-43 and A-47. There is a real doubt regarding the identity of the accused as to whether PW 4 would have meant A-53 when he said the name "Mahmoobmiya" and A-1 when he said the name "Isamiya". We are inclined to extend the benefit of that reasonable doubt to A-43 and A-47 12. We wish to utilise this opportunity to impress upon the trial courts of the need to indicate the rank of the accused, besides using the name, while recording evidence in cases involving multiplicity of accused. It would be profitable for the High Courts to issue circulars to the trial courts to implement this practical suggestion to avoid possible miscarriage of justice resulting solely on account of defective and truncated recording of evidence in criminal cases involving many accused. It is a necessity for the appellate and revisional courts since such courts have to exercise jurisdiction only h with the help of records of the case
### Response:
1
### Explanation:
We have no reason to think that PW 5 and PW 6 would have falsely testified that they witnessed the first part of the occurrence. We are satisfied, on a perusal of their testimony that the trial court has rightly placed reliance on the testimony of those two witnesses6. PW 4 (Anil Kumar) is another witness who said that he saw a part of the occurrence. His version is that while he was proceeding to the godown of his uncle he happened to see the deceased in the company of Jitubhai (PW 5) and Nathubhai (PW 6). As they were proceeding near Rafiq Pan Centre, PW 4 saw some persons emerging from ambush near the cabin situated on the roadside, armed with weapons and attacking the deceased Girishbhai. PW 4 took to his heels and reached the house of the Sarpanch (PW 3) and conveyed to him the frightening news. It is pertinent to note in this context that PW 3 has also said that he came to know of the incident first when Anil Kumar (PW 4) told him about it at his house. The learned trial Judge has found the testimony of PW 4 quite reliable and we have no reason to dissent from it7. From the account given by PW 4, PW 5 and PW 6, we have no doubt that the assailants who attacked the deceased were far more than five in number who formed themselves into an unlawful assembly whose common object was to finish off Girishbhai8. But the crucial question is whether the appellants, or any one of them, were members of the unlawful assembly.If it was so, the conviction and sentence passed by the trial court on such of them, are liable to be upheld9. The nine appellants are2 (Mohmedrafiq),3 (Mehboobmiya Lalmiya),4 (Mohmed Hanif),5 (Imtyaz Ibraham),6 (Idrisbhai Gafoorbhai),7 (Isamiya Alimiya),8 (Basirmiya Insammiya),9 (Mahemudmiya Isamiya) and8 (Mohmedmiya alias Mamlo Salimmiya)10. PW 5 (Jitubhai) has identified during trial stage all the nine participants in the crime but PW 6 (Nathubhai) has identified only2 (Mohmedrafiq),5 (Jmtyaz Ibraham),6 (Idrisbhai Gafoorbhai),9 (Mahemudmiya Isamiya) and8 (Mohmedmiya) as the assailants. We have no difficulty in concurring with the finding of the trial court that those five persons were members of the unlawful assembly. Anil Kumar (PW 4) has also said that5 and8 were participants in the incident. But no other witness has supported the version of PW 5 that4 (Mohmed Hanif) and8 (Basirmiya Insammiya)were alsothe assailants11. Of course, PW 4 has deposed that he identified Mahemudmiya and Isamiya also amongthe assailantsbut we have difficulty in this case for fixing up those two persons as3 and7 because among the 63 accused, there are two other persons also bearing the same names. They are3 (Maheboobmiya Akbarmiya) and1 (Isamiya Mirsabmiya). As PW 4 in his deposition has described the said two accused by the names "Mahboobmiya" and "Isamiya" without any further prefix or suffix, the reference made by the witness could as well apply to3 and1 also instead of3 and. There is a real doubt regarding the identity of the accused as to whether PW 4 would have meant3 when he said the name "Mahmoobmiya" and1 when he said the name "Isamiya". We are inclined to extend the benefit of that reasonable doubt to12. We wish to utilise this opportunity to impress upon the trial courts of the need to indicate the rank of the accused, besides using the name, while recording evidence in cases involving multiplicity of accused. It would be profitable for the High Courts to issue circulars to the trial courts to implement this practical suggestion to avoid possible miscarriage of justice resulting solely on account of defective and truncated recording of evidence in criminal cases involving many accused. It is a necessity for the appellate and revisional courts since such courts have to exercise jurisdiction only h with the help of records of the case
|
SWARAJ INFRASTRUCTURE PVT. LTD Vs. KOTAK MAHINDRA BANK LTD | the Madras, Calcutta and Karnataka High Courts and as reiterated in the judgment of the Company Court in Canfin Homes Ltd., it is not possible to accept the submission which was urged on behalf of the appellant. The law does not impose an unreasonable condition of requiring a secured creditor to forsake his security before he asserts a right to urge that a company which is unable to pay its debts should be wound up. The respondent has stated before the learned Company Judge, when the petition for winding up came up for hearing that it was not possible for the respondent to recover her dues by the sale of the land in respect of which a security has been created in favour of the respondent. The claim of the respondent is still to be proved in the course of the winding up proceedings. A secured creditor who has a mortgage, charge or lien on the property of the company as security for her debt may either: (a) enforce the security and prove in the winding up for the balance of the debt after deducting the amount realised; or (b) surrender the security to the Liquidator and prove for the whole of the debt as an unsecured creditor; or (c) estimate the value of the property subject to her security, and prove for the balance of the debt after deducting the estimated value; or (d) rely on the security and not prove in the winding up proceedings. [Penningtons Company Law (Fourth edition, page 762)]. A secured creditor has the option of relinquishing his security and/or proving the entirety of his debt in the course of winding up. If the secured creditor does so in the course of winding up proceedings, the security will enure for the benefit of the body of creditors. On the other hand, it is open to a secured creditor to prove in the course of winding up proceedings to the extent of debt which has not been realised outside the proceedings for winding up by either accounting for the amount that has been so realised or by estimating the value of the property subject to security so as to enable him to prove in respect of the balance of the debt. On either view of the matter, that stage is still to arrive.” 18. In fact, even in Jitendra Nath Singh v. Official Liquidator, (2013) 1 SCC 462 , this Court, after referring to Section 47 of the Provincial Insolvency Act, 1920 and Section 529 of the Companies Act, 1956, held as follows: “16.1. A secured creditor has only a charge over a particular property or asset of the company. The secured creditor has the option to either realise his security or relinquish his security. If the secured creditor relinquishes his security, like any other unsecured creditor, he is entitled to prove the debt due to him and receive dividends out of the assets of the company in the winding-up proceedings. If the secured creditor opts to realise his security, he is entitled to realise his security in a proceeding other than the winding-up proceeding but has to pay to the liquidator the costs of preservation of the security till he realises the security.” (emphasis supplied)xxx xxx xxx17. In support of our aforesaid conclusions, we may now cite some authorities. In Allahabad Bank v. Canara Bank [(2000) 4 SCC 406] , a two-Judge Bench of this Court speaking through M. Jagannadha Rao, J. discussed these rights of the secured creditors in paras 62, 63, 64 and 65 of the judgment as reported in SCC, which are extracted hereinbelow: (SCC pp. 435-36) “62. Secured creditors fall under two categories. Those who desire to go before the Company Court and those who like to stand outside the winding up.63. The first category of secured creditors mentioned above are those who go before the Company Court for dividend by relinquishing their security in accordance with the insolvency rules mentioned in Section 529. The insolvency rules are those contained in Sections 45 to 50 of the Provincial Insolvency Act. Section 47(2) of that Act states that a secured creditor who wishes to come before the Official Liquidator has to prove his debt and he can prove his debt only if he relinquishes his security for the benefit of the general body of creditors. In that event, he will rank with the unsecured creditors and has to take his dividend as provided in Section 529(2). Till today, Canara Bank has not made it clear whether it wants to come under this category.xxx xxx xxx” 19. We now come to the argument based on Section 434(1)(b) of the Companies Act, 1956. It is obvious that Section 434(1)(b) is attracted only if execution or other process is issued in respect of an order of a Tribunal in favour of a creditor of the company is returned unsatisfied in whole or in part. This is only one of three instances in which a company shall be deemed to be unable to pay its debts. If the fact situation fits sub-clause (b) of Section 434(1), then a company may be said to be deemed to be unable to pay its debts. However, this does not mean that each one of the sub-clauses of Section 434(1) are mutually exclusive in the sense that once Section 434(1)(b) applies, Section 434(1)(a) ceases to be applicable. Also, on the facts of this case, we may state that the company petition was filed only on 03.07.2015, pursuant to a notice under Section 433 of the Companies Act, 1956 dated 15.04.2015. This petition was filed under Section 433(e) read with Section 434(1)(a) of the Companies Act, 1956. At the stage at which the petition was filed, it could not possibly have been filed under Section 434(1)(b) of the Companies Act, 1956, as execution or other process in the form of a recovery certificate had not been issued by the Recovery Officer till 12.08.2015, i.e., till after the company petition was filed. | 0[ds]13. It is true that this Court has stated that a winding up petition is a form of equitable execution of a debt, but this is qualified by stating that a winding up order is not a normal alternative to the ordinary procedure for realization of debts due to a creditor. We are of the view that both the judgments contained in Amalgamated Commercial Traders (supra) as well as in Harinagar Sugar Mills (supra), recognize the fact that a winding up proceeding is not a proceeding that can be referred to as a proceeding for realization of debts and would, therefore, not be covered by the language of Section 17 read with Section 18 of the Recovery of Debts Act. When it comes to a winding up proceeding under the Companies Act, 1956, since such a proceeding is notdue to banks, the bar contained in Section 18 read with Section 34 of the Recovery of Debts Act would not apply to winding up proceedings under the Companies Act, 1956.14. In point of fact, a Division Bench of the Bombay High Court in Viral Filaments Ltd. v. Indusind Bank Ltd., (2001) 3 Mah LJ 552 reached this very conclusion after closely examining the judgment in Allahabad Bank v. Canara Bank (supra) of this Court. We approve of the reasoning contained in the aforesaid Bombay High Courta matter of fact, sub-paragraphs (i) and (iv) of paragraph 18 would show that proceedings before the DRT, and winding up proceedings under the Companies Act, 1956, can carry on in parallel streams. That is why paragraph 18(i) states that a Debts Recovery Tribunal, acting under the Recovery of Debts Act, would be entitled to order sale, and sell the properties of the debtor, even of a company in liquidation, but only after giving notice to the Official Liquidator, or to the Liquidator appointed by the Company Court, and after hearing him.The second important point raised by learned counsel for the appellant is that a conjoint reading of the Companies Act, 1956 and the Provincial Insolvency Act, 1920, would make it clear that the secured creditor must, at the time of filing the petition for winding up, state that it has given up his security, or else, such winding up petition would not be maintainable.We now come to the argument based on Section 434(1)(b) of the Companies Act, 1956. It is obvious that Section 434(1)(b) is attracted only if execution or other process is issued in respect of an order of a Tribunal in favour of a creditor of the company is returned unsatisfied in whole or in part. This is only one of three instances in which a company shall be deemed to be unable to pay its debts. If the fact situation fits sub-clause (b) of Section 434(1), then a company may be said to be deemed to be unable to pay its debts. However, this does not mean that each one of the sub-clauses of Section 434(1) are mutually exclusive in the sense that once Section 434(1)(b) applies, Section 434(1)(a) ceases to be applicable. Also, on the facts of this case, we may state that the company petition was filed only on 03.07.2015, pursuant to a notice under Section 433 of the Companies Act, 1956 dated 15.04.2015. This petition was filed under Section 433(e) read with Section 434(1)(a) of the Companies Act, 1956. At the stage at which the petition was filed, it could not possibly have been filed under Section 434(1)(b) of the Companies Act, 1956, as execution or other process in the form of a recovery certificate had not been issued by the Recovery Officer till 12.08.2015, i.e., till after the company petition was filed. | 0 | 8,443 | 736 | ### Instruction:
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the Madras, Calcutta and Karnataka High Courts and as reiterated in the judgment of the Company Court in Canfin Homes Ltd., it is not possible to accept the submission which was urged on behalf of the appellant. The law does not impose an unreasonable condition of requiring a secured creditor to forsake his security before he asserts a right to urge that a company which is unable to pay its debts should be wound up. The respondent has stated before the learned Company Judge, when the petition for winding up came up for hearing that it was not possible for the respondent to recover her dues by the sale of the land in respect of which a security has been created in favour of the respondent. The claim of the respondent is still to be proved in the course of the winding up proceedings. A secured creditor who has a mortgage, charge or lien on the property of the company as security for her debt may either: (a) enforce the security and prove in the winding up for the balance of the debt after deducting the amount realised; or (b) surrender the security to the Liquidator and prove for the whole of the debt as an unsecured creditor; or (c) estimate the value of the property subject to her security, and prove for the balance of the debt after deducting the estimated value; or (d) rely on the security and not prove in the winding up proceedings. [Penningtons Company Law (Fourth edition, page 762)]. A secured creditor has the option of relinquishing his security and/or proving the entirety of his debt in the course of winding up. If the secured creditor does so in the course of winding up proceedings, the security will enure for the benefit of the body of creditors. On the other hand, it is open to a secured creditor to prove in the course of winding up proceedings to the extent of debt which has not been realised outside the proceedings for winding up by either accounting for the amount that has been so realised or by estimating the value of the property subject to security so as to enable him to prove in respect of the balance of the debt. On either view of the matter, that stage is still to arrive.” 18. In fact, even in Jitendra Nath Singh v. Official Liquidator, (2013) 1 SCC 462 , this Court, after referring to Section 47 of the Provincial Insolvency Act, 1920 and Section 529 of the Companies Act, 1956, held as follows: “16.1. A secured creditor has only a charge over a particular property or asset of the company. The secured creditor has the option to either realise his security or relinquish his security. If the secured creditor relinquishes his security, like any other unsecured creditor, he is entitled to prove the debt due to him and receive dividends out of the assets of the company in the winding-up proceedings. If the secured creditor opts to realise his security, he is entitled to realise his security in a proceeding other than the winding-up proceeding but has to pay to the liquidator the costs of preservation of the security till he realises the security.” (emphasis supplied)xxx xxx xxx17. In support of our aforesaid conclusions, we may now cite some authorities. In Allahabad Bank v. Canara Bank [(2000) 4 SCC 406] , a two-Judge Bench of this Court speaking through M. Jagannadha Rao, J. discussed these rights of the secured creditors in paras 62, 63, 64 and 65 of the judgment as reported in SCC, which are extracted hereinbelow: (SCC pp. 435-36) “62. Secured creditors fall under two categories. Those who desire to go before the Company Court and those who like to stand outside the winding up.63. The first category of secured creditors mentioned above are those who go before the Company Court for dividend by relinquishing their security in accordance with the insolvency rules mentioned in Section 529. The insolvency rules are those contained in Sections 45 to 50 of the Provincial Insolvency Act. Section 47(2) of that Act states that a secured creditor who wishes to come before the Official Liquidator has to prove his debt and he can prove his debt only if he relinquishes his security for the benefit of the general body of creditors. In that event, he will rank with the unsecured creditors and has to take his dividend as provided in Section 529(2). Till today, Canara Bank has not made it clear whether it wants to come under this category.xxx xxx xxx” 19. We now come to the argument based on Section 434(1)(b) of the Companies Act, 1956. It is obvious that Section 434(1)(b) is attracted only if execution or other process is issued in respect of an order of a Tribunal in favour of a creditor of the company is returned unsatisfied in whole or in part. This is only one of three instances in which a company shall be deemed to be unable to pay its debts. If the fact situation fits sub-clause (b) of Section 434(1), then a company may be said to be deemed to be unable to pay its debts. However, this does not mean that each one of the sub-clauses of Section 434(1) are mutually exclusive in the sense that once Section 434(1)(b) applies, Section 434(1)(a) ceases to be applicable. Also, on the facts of this case, we may state that the company petition was filed only on 03.07.2015, pursuant to a notice under Section 433 of the Companies Act, 1956 dated 15.04.2015. This petition was filed under Section 433(e) read with Section 434(1)(a) of the Companies Act, 1956. At the stage at which the petition was filed, it could not possibly have been filed under Section 434(1)(b) of the Companies Act, 1956, as execution or other process in the form of a recovery certificate had not been issued by the Recovery Officer till 12.08.2015, i.e., till after the company petition was filed.
### Response:
0
### Explanation:
13. It is true that this Court has stated that a winding up petition is a form of equitable execution of a debt, but this is qualified by stating that a winding up order is not a normal alternative to the ordinary procedure for realization of debts due to a creditor. We are of the view that both the judgments contained in Amalgamated Commercial Traders (supra) as well as in Harinagar Sugar Mills (supra), recognize the fact that a winding up proceeding is not a proceeding that can be referred to as a proceeding for realization of debts and would, therefore, not be covered by the language of Section 17 read with Section 18 of the Recovery of Debts Act. When it comes to a winding up proceeding under the Companies Act, 1956, since such a proceeding is notdue to banks, the bar contained in Section 18 read with Section 34 of the Recovery of Debts Act would not apply to winding up proceedings under the Companies Act, 1956.14. In point of fact, a Division Bench of the Bombay High Court in Viral Filaments Ltd. v. Indusind Bank Ltd., (2001) 3 Mah LJ 552 reached this very conclusion after closely examining the judgment in Allahabad Bank v. Canara Bank (supra) of this Court. We approve of the reasoning contained in the aforesaid Bombay High Courta matter of fact, sub-paragraphs (i) and (iv) of paragraph 18 would show that proceedings before the DRT, and winding up proceedings under the Companies Act, 1956, can carry on in parallel streams. That is why paragraph 18(i) states that a Debts Recovery Tribunal, acting under the Recovery of Debts Act, would be entitled to order sale, and sell the properties of the debtor, even of a company in liquidation, but only after giving notice to the Official Liquidator, or to the Liquidator appointed by the Company Court, and after hearing him.The second important point raised by learned counsel for the appellant is that a conjoint reading of the Companies Act, 1956 and the Provincial Insolvency Act, 1920, would make it clear that the secured creditor must, at the time of filing the petition for winding up, state that it has given up his security, or else, such winding up petition would not be maintainable.We now come to the argument based on Section 434(1)(b) of the Companies Act, 1956. It is obvious that Section 434(1)(b) is attracted only if execution or other process is issued in respect of an order of a Tribunal in favour of a creditor of the company is returned unsatisfied in whole or in part. This is only one of three instances in which a company shall be deemed to be unable to pay its debts. If the fact situation fits sub-clause (b) of Section 434(1), then a company may be said to be deemed to be unable to pay its debts. However, this does not mean that each one of the sub-clauses of Section 434(1) are mutually exclusive in the sense that once Section 434(1)(b) applies, Section 434(1)(a) ceases to be applicable. Also, on the facts of this case, we may state that the company petition was filed only on 03.07.2015, pursuant to a notice under Section 433 of the Companies Act, 1956 dated 15.04.2015. This petition was filed under Section 433(e) read with Section 434(1)(a) of the Companies Act, 1956. At the stage at which the petition was filed, it could not possibly have been filed under Section 434(1)(b) of the Companies Act, 1956, as execution or other process in the form of a recovery certificate had not been issued by the Recovery Officer till 12.08.2015, i.e., till after the company petition was filed.
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Sant Lal Vs. Rajesh & Others | Arun Mishra, J.1. Leave granted.2. The appeals have been preferred by the owner, aggrieved by the award passed by the Motor Accident Claims Tribunal, Bhiwani (for short, "the MACT"). The driver was driving a tractor which was attached to the trolley carrying goods. The MACT held that the same becomes transport vehicle though the driver was having licence to drive motor cycle, scooter, car, jeep and light motor vehicle. There was no endorsement to drive a transport vehicle. Thus, there was violation of the conditions of the policy. Driver was not having a valid licence to drive transport vehicle. Thus, after making payments to the claimant, right of recovery have been given to the insurer from owner. The award has been affirmed by the High Court. Hence present appeals.3. This Court has considered the question whether the holder of licence for light motor vehicle can drive tractor attached to the trolley carrying goods and also whether separate endorsement is required authorizing him to drive such a transport vehicle ?4. We have answered the question that driver having licence to drive light motor vehicle can drive such a transport vehicle of LMV class and there is no necessity to obtain separate endorsement, since tractor attached with the trolley was transport vehicle of the category of light motor vehicle. Hence, there was no breach of the conditions of the policy. | 1[ds]4. We have answered the question that driver having licence to drive light motor vehicle can drive such a transport vehicle of LMV class and there is no necessity to obtain separate endorsement, since tractor attached with the trolley was transport vehicle of the category of light motor vehicle. Hence, there was no breach of the conditions of the policy. | 1 | 259 | 69 | ### 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:
Arun Mishra, J.1. Leave granted.2. The appeals have been preferred by the owner, aggrieved by the award passed by the Motor Accident Claims Tribunal, Bhiwani (for short, "the MACT"). The driver was driving a tractor which was attached to the trolley carrying goods. The MACT held that the same becomes transport vehicle though the driver was having licence to drive motor cycle, scooter, car, jeep and light motor vehicle. There was no endorsement to drive a transport vehicle. Thus, there was violation of the conditions of the policy. Driver was not having a valid licence to drive transport vehicle. Thus, after making payments to the claimant, right of recovery have been given to the insurer from owner. The award has been affirmed by the High Court. Hence present appeals.3. This Court has considered the question whether the holder of licence for light motor vehicle can drive tractor attached to the trolley carrying goods and also whether separate endorsement is required authorizing him to drive such a transport vehicle ?4. We have answered the question that driver having licence to drive light motor vehicle can drive such a transport vehicle of LMV class and there is no necessity to obtain separate endorsement, since tractor attached with the trolley was transport vehicle of the category of light motor vehicle. Hence, there was no breach of the conditions of the policy.
### Response:
1
### Explanation:
4. We have answered the question that driver having licence to drive light motor vehicle can drive such a transport vehicle of LMV class and there is no necessity to obtain separate endorsement, since tractor attached with the trolley was transport vehicle of the category of light motor vehicle. Hence, there was no breach of the conditions of the policy.
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Ishwar Chandra Vs. Satyanarain Sinha & Others | easily come to Indore either by Car or by Plane. The Plane leaves Bhopal at about 9.00 a.m. and reaches Indore at about 9.30 a.m. After attending the meeting you can leave by plane which leaves for Bhopal at about 2.00 p.m. As far as Lunch is concerned, if you let me know if you are vegetarian or non-vegetarian, I can arrange to give you lunch at my place. If it is impossible for you to come to Indore I would request you to send me your suggestions regarding suitable names for the post of Vice-Chancellor of the Saugar University by the 3rd of April. I would, however, request you to make it convenient to attend the meeting at Indore. I have already sent you a telegram to the effect that the meeting is fixed on the 4th of April at Indore in the Meeting Room of the University of Indore at 10.30 a.m. Hoping to hear from you by the return of post and with kind regards." Before this letter reached, to the telegram received by him, Justice Naik wrote a letter to Shinde as follows:-"I am in receipt of you telegram intimating to me that you have fixed the meeting to consider panel of names for Saugar University on the 4th of April 1970, at 10.30 a.m. at Indore in the Indore University. I regret my inability to be present at Indore on the date and time specified. Though I may be able to attend the meeting if the venue is changed to Bhopal. It is very surprising that you should have fixed the meeting on the 4th of April at Indore, even though I had informed you by a telegram on the 17th of March 1970, that it would not be possible for me to attend it there, on that date. Anyway, knowing full well that it would not be possible for me to be present at Indore at 10.30 a.m. on April 4, 1970, you seem determined to hold the meeting there presumably in my absence. I can only regret your decision. If you are still interested in having my presence for the meeting, you may fix it either on the 4th or the 11th April 1970 at Saugar or Bhopal, though Bhopal would be more convenient to me personally. I hope you have recovered from the effects of your illness by now." This letter shows that though Justice Naik knew about the illness of Shinde, he somehow seems to have assumed, and if we may say so, without justification that Shinde was determined to hold it there presumably in his absence. On the 27th March 1970, the next day, he however, after the receipt of the letter of the 24th instant from Shinde did not take up the attitude that the meeting was being held presumably to keep him away from attending it. Justice Naik, however, tried to explain his difficulty. He said:- "I am in receipt of your letter dated 24th March 1970. I am sorry to note that you have not yet recovered from the effects of your illness. I do hope you shall soon get well. As for my coming to Indore. I had considered the possibility of my going there by air from Bhopal but I am informed that the journey is very bumpy these days due to weather conditions and I do get terribly sick if the journey is bumpy. I had, therefore, to give up the idea of going by air, and as I cannot spare more than a day for the meeting, I had intimated to you that it would not be possible for me to come to Indore for the meeting scheduled for the 4th of April 1970 at 10.30 a.m. in Indore University. As for your kindly suggestion that I may by a letter suggest names to you for your consideration, I am of opinion that it would not only not be fair to the persons whose names I may suggest but also not be in keeping with the letter and spirit of the Saugar University Act. With kind regards". This letter clearly negatives the assumption in the High Courts order that Shinde was trying to keep out Justice Naik from the meeting. On the other hand, Shinde in that letter had requested Justice Naik to suggest names of persons to be considered which prima facie negatives any intention on his part to keep Justice Naik away from the meeting. There is also nothing in the materials on the record to show that the correspondence cited above was perused by the Chancellor either at the time when the show cause notice was given to the appellant or at the time of making the impugned Order. It cannot, therefore, be assumed that the governor was influenced by the above correspondence. It is rather unfortunate that the appellants Writ Petition was dismissed in limine and without a proper appreciation of all the relevant facts. There is little doubt that the impugned Order made by the Chancellor was based entirely on the legality of the meeting where only two out of three members were present when the name of the appellant was recommended. The High Court delved into the correspondence to sustain the order of the Chancellor on grounds other than those relied upon by him in that order for dismissing the Writ Petition in limine, which in our view, was not justified. It is also not denied that the meeting held by two of the three members on the 4th April 1970 was legal because sufficient notice was given to all the three members. If for one reason or the other one of them could not attend, that does not make the meeting of others illegal. In such circumstances, where there is no rule or regulation or any other provision for fixing the quorum, the presence of the majority of the members would constitute it a valid meeting and matters considered thereat cannot be held to be invalid. | 1[ds]5. The assumption in this order rejecting the Writ Petition is not warranted, firstly, because the correspondence does not show that there was any deliberate attempt made by the Chairman to exclude one of the members, in this case, Justice T. P. Naik, and secondly, that the Chancellor had, because of this exclusion, declared the meeting held on the 4th April 1970 as not being valid. We have already pointed out that the Chancellor was merely concerned with the legality of the recommendation made by two out of three members and not that any attempt was made by the Chairman to exclude one of the members. Neither the show cause notice, nor the reply given by the appellant to that notice, nor even the Order of the Chancellor indicates any such ground as that assumed by the High Court to form the basis of the Chancellors order. The correspondence shows that the Chairman had written a letter on the 12th February 1970 in which he inquired of Justice Naik whether the 7th and 8th March 1970 would suit him to meet at Bhopal to consider the names for the panel. Later on the 20th February, 1970, he wrote another letter saying that the other member was abroad, and therefore, the meeting which was proposed to be held on the 7th or 8th cannot be held and that he would let him know when a new date was fixed. In fact Justice Naik replied on the 27th February 1970 acknowledging these letters and asking him to let him know the date of the meeting as and when fixed On the 8th March 1970 Mr. Shinde again wrote to Justice Naik fixing the meeting on the 21st March 1970 at 10.30 a. m. at Indore and also suggested that if necessary they may meet the next day, the 22nd March 1970. On the 16th March 1970 Shinde sent a telegram to Justice Naik asking him to wire if 4th April was suitable at Indore. On the 18th March 1970, he again sent a telegram to him saying: "Doctors Forbid travel stop wire whether 4th and 11th April suitable for Indore." Justice Naik sent two telegrams, one on the 21st March 1970 saying that 4th is suitable at Saugar or Bhopal and another on the 27th March 1970 stating that both 4th and 11th suitable at Saugar or Bhopal He also wrote two letters on the 26th and 27th to Shinde. Shinde had earlier written on the 24th March 1970 to Justice Naik in which he said as follows:-"The contents of your telegram were conveyed to me on the phone today. It appears that 4th and 11th April both are suitable to you at Sugar and Bhopal. As I told you before, I am recovering from the attack of virus fever and am, therefore, not strong enough to undertake a car journey of 120 miles to Bhopal. There is no convenient plane to come to Bhopal either. If I come by plane I shall have to stay over the night at the Circuit House and as I am still on diet, the Circuit House food will not suit me. As you can come up to Bhopal you can easily come to Indore either by Car or by Plane. The Plane leaves Bhopal at about 9.00 a.m. and reaches Indore at about 9.30 a.m. After attending the meeting you can leave by plane which leaves for Bhopal at about 2.00 p.m. As far as Lunch is concerned, if you let me know if you are vegetarian or non-vegetarian, I can arrange to give you lunch at my place. If it is impossible for you to come to Indore I would request you to send me your suggestions regarding suitable names for the post of Vice-Chancellor of the Saugar University by the 3rd of April. I would, however, request you to make it convenient to attend the meeting at Indore. I have already sent you a telegram to the effect that the meeting is fixed on the 4th of April at Indore in the Meeting Room of the University of Indore at 10.30 a.mHoping to hear from you by the return of post and with kind regards."Before this letter reached, to the telegram received by him, Justice Naik wrote a letter to Shinde as follows:-"I am in receipt of you telegram intimating to me that you have fixed the meeting to consider panel of names for Saugar University on the 4th of April 1970, at 10.30 a.m. at Indore in the Indore UniversityI regret my inability to be present at Indore on the date and time specified. Though I may be able to attend the meeting if the venue is changed to BhopalIt is very surprising that you should have fixed the meeting on the 4th of April at Indore, even though I had informed you by a telegram on the 17th of March 1970, that it would not be possible for me to attend it there, on that dateAnyway, knowing full well that it would not be possible for me to be present at Indore at 10.30 a.m. on April 4, 1970, you seem determined to hold the meeting there presumably in my absence. I can only regret your decisionIf you are still interested in having my presence for the meeting, you may fix it either on the 4th or the 11th April 1970 at Saugar or Bhopal, though Bhopal would be more convenient to me personallyI hope you have recovered from the effects of your illness by now." This letter shows that though Justice Naik knew about the illness of Shinde, he somehow seems to have assumed, and if we may say so, without justification that Shinde was determined to hold it there presumably in his absence. On the 27th March 1970, the next day, he however, after the receipt of the letter of the 24th instant from Shinde did not take up the attitude that the meeting was being held presumably to keep him away from attending it. Justice Naik, however, tried to explain his difficulty. He said:-"I am in receipt of your letter dated 24th March 1970. I am sorry to note that you have not yet recovered from the effects of your illness. I do hope you shall soon get wellAs for my coming to Indore. I had considered the possibility of my going there by air from Bhopal but I am informed that the journey is very bumpy these days due to weather conditions and I do get terribly sick if the journey is bumpy. I had, therefore, to give up the idea of going by air, and as I cannot spare more than a day for the meeting, I had intimated to you that it would not be possible for me to come to Indore for the meeting scheduled for the 4th of April 1970 at 10.30 a.m. in Indore UniversityAs for your kindly suggestion that I may by a letter suggest names to you for your consideration, I am of opinion that it would not only not be fair to the persons whose names I may suggest but also not be in keeping with the letter and spirit of the Saugar University ActWith kind regards"This letter clearly negatives the assumption in the High Courts order that Shinde was trying to keep out Justice Naik from the meeting. On the other hand, Shinde in that letter had requested Justice Naik to suggest names of persons to be considered which prima facie negatives any intention on his part to keep Justice Naik away from the meeting. There is also nothing in the materials on the record to show that the correspondence cited above was perused by the Chancellor either at the time when the show cause notice was given to the appellant or at the time of making the impugned Order. It cannot, therefore, be assumed that the governor was influenced by the above correspondence. It is rather unfortunate that the appellants Writ Petition was dismissed in limine and without a proper appreciation of all the relevant facts. There is little doubt that the impugned Order made by the Chancellor was based entirely on the legality of the meeting where only two out of three members were present when the name of the appellant was recommended. The High Court delved into the correspondence to sustain the order of the Chancellor on grounds other than those relied upon by him in that order for dismissing the Writ Petition in limine, which in our view, was not justified. It is also not denied that the meeting held by two of the three members on the 4th April 1970 was legal because sufficient notice was given to all the three members. If for one reason or the other one of them could not attend, that does not make the meeting of others illegal. In such circumstances, where there is no rule or regulation or any other provision for fixing the quorum, the presence of the majority of the members would constitute it a valid meeting and matters considered thereat cannot be held to be invalid | 1 | 3,389 | 1,647 | ### 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:
easily come to Indore either by Car or by Plane. The Plane leaves Bhopal at about 9.00 a.m. and reaches Indore at about 9.30 a.m. After attending the meeting you can leave by plane which leaves for Bhopal at about 2.00 p.m. As far as Lunch is concerned, if you let me know if you are vegetarian or non-vegetarian, I can arrange to give you lunch at my place. If it is impossible for you to come to Indore I would request you to send me your suggestions regarding suitable names for the post of Vice-Chancellor of the Saugar University by the 3rd of April. I would, however, request you to make it convenient to attend the meeting at Indore. I have already sent you a telegram to the effect that the meeting is fixed on the 4th of April at Indore in the Meeting Room of the University of Indore at 10.30 a.m. Hoping to hear from you by the return of post and with kind regards." Before this letter reached, to the telegram received by him, Justice Naik wrote a letter to Shinde as follows:-"I am in receipt of you telegram intimating to me that you have fixed the meeting to consider panel of names for Saugar University on the 4th of April 1970, at 10.30 a.m. at Indore in the Indore University. I regret my inability to be present at Indore on the date and time specified. Though I may be able to attend the meeting if the venue is changed to Bhopal. It is very surprising that you should have fixed the meeting on the 4th of April at Indore, even though I had informed you by a telegram on the 17th of March 1970, that it would not be possible for me to attend it there, on that date. Anyway, knowing full well that it would not be possible for me to be present at Indore at 10.30 a.m. on April 4, 1970, you seem determined to hold the meeting there presumably in my absence. I can only regret your decision. If you are still interested in having my presence for the meeting, you may fix it either on the 4th or the 11th April 1970 at Saugar or Bhopal, though Bhopal would be more convenient to me personally. I hope you have recovered from the effects of your illness by now." This letter shows that though Justice Naik knew about the illness of Shinde, he somehow seems to have assumed, and if we may say so, without justification that Shinde was determined to hold it there presumably in his absence. On the 27th March 1970, the next day, he however, after the receipt of the letter of the 24th instant from Shinde did not take up the attitude that the meeting was being held presumably to keep him away from attending it. Justice Naik, however, tried to explain his difficulty. He said:- "I am in receipt of your letter dated 24th March 1970. I am sorry to note that you have not yet recovered from the effects of your illness. I do hope you shall soon get well. As for my coming to Indore. I had considered the possibility of my going there by air from Bhopal but I am informed that the journey is very bumpy these days due to weather conditions and I do get terribly sick if the journey is bumpy. I had, therefore, to give up the idea of going by air, and as I cannot spare more than a day for the meeting, I had intimated to you that it would not be possible for me to come to Indore for the meeting scheduled for the 4th of April 1970 at 10.30 a.m. in Indore University. As for your kindly suggestion that I may by a letter suggest names to you for your consideration, I am of opinion that it would not only not be fair to the persons whose names I may suggest but also not be in keeping with the letter and spirit of the Saugar University Act. With kind regards". This letter clearly negatives the assumption in the High Courts order that Shinde was trying to keep out Justice Naik from the meeting. On the other hand, Shinde in that letter had requested Justice Naik to suggest names of persons to be considered which prima facie negatives any intention on his part to keep Justice Naik away from the meeting. There is also nothing in the materials on the record to show that the correspondence cited above was perused by the Chancellor either at the time when the show cause notice was given to the appellant or at the time of making the impugned Order. It cannot, therefore, be assumed that the governor was influenced by the above correspondence. It is rather unfortunate that the appellants Writ Petition was dismissed in limine and without a proper appreciation of all the relevant facts. There is little doubt that the impugned Order made by the Chancellor was based entirely on the legality of the meeting where only two out of three members were present when the name of the appellant was recommended. The High Court delved into the correspondence to sustain the order of the Chancellor on grounds other than those relied upon by him in that order for dismissing the Writ Petition in limine, which in our view, was not justified. It is also not denied that the meeting held by two of the three members on the 4th April 1970 was legal because sufficient notice was given to all the three members. If for one reason or the other one of them could not attend, that does not make the meeting of others illegal. In such circumstances, where there is no rule or regulation or any other provision for fixing the quorum, the presence of the majority of the members would constitute it a valid meeting and matters considered thereat cannot be held to be invalid.
### Response:
1
### Explanation:
not suit me. As you can come up to Bhopal you can easily come to Indore either by Car or by Plane. The Plane leaves Bhopal at about 9.00 a.m. and reaches Indore at about 9.30 a.m. After attending the meeting you can leave by plane which leaves for Bhopal at about 2.00 p.m. As far as Lunch is concerned, if you let me know if you are vegetarian or non-vegetarian, I can arrange to give you lunch at my place. If it is impossible for you to come to Indore I would request you to send me your suggestions regarding suitable names for the post of Vice-Chancellor of the Saugar University by the 3rd of April. I would, however, request you to make it convenient to attend the meeting at Indore. I have already sent you a telegram to the effect that the meeting is fixed on the 4th of April at Indore in the Meeting Room of the University of Indore at 10.30 a.mHoping to hear from you by the return of post and with kind regards."Before this letter reached, to the telegram received by him, Justice Naik wrote a letter to Shinde as follows:-"I am in receipt of you telegram intimating to me that you have fixed the meeting to consider panel of names for Saugar University on the 4th of April 1970, at 10.30 a.m. at Indore in the Indore UniversityI regret my inability to be present at Indore on the date and time specified. Though I may be able to attend the meeting if the venue is changed to BhopalIt is very surprising that you should have fixed the meeting on the 4th of April at Indore, even though I had informed you by a telegram on the 17th of March 1970, that it would not be possible for me to attend it there, on that dateAnyway, knowing full well that it would not be possible for me to be present at Indore at 10.30 a.m. on April 4, 1970, you seem determined to hold the meeting there presumably in my absence. I can only regret your decisionIf you are still interested in having my presence for the meeting, you may fix it either on the 4th or the 11th April 1970 at Saugar or Bhopal, though Bhopal would be more convenient to me personallyI hope you have recovered from the effects of your illness by now." This letter shows that though Justice Naik knew about the illness of Shinde, he somehow seems to have assumed, and if we may say so, without justification that Shinde was determined to hold it there presumably in his absence. On the 27th March 1970, the next day, he however, after the receipt of the letter of the 24th instant from Shinde did not take up the attitude that the meeting was being held presumably to keep him away from attending it. Justice Naik, however, tried to explain his difficulty. He said:-"I am in receipt of your letter dated 24th March 1970. I am sorry to note that you have not yet recovered from the effects of your illness. I do hope you shall soon get wellAs for my coming to Indore. I had considered the possibility of my going there by air from Bhopal but I am informed that the journey is very bumpy these days due to weather conditions and I do get terribly sick if the journey is bumpy. I had, therefore, to give up the idea of going by air, and as I cannot spare more than a day for the meeting, I had intimated to you that it would not be possible for me to come to Indore for the meeting scheduled for the 4th of April 1970 at 10.30 a.m. in Indore UniversityAs for your kindly suggestion that I may by a letter suggest names to you for your consideration, I am of opinion that it would not only not be fair to the persons whose names I may suggest but also not be in keeping with the letter and spirit of the Saugar University ActWith kind regards"This letter clearly negatives the assumption in the High Courts order that Shinde was trying to keep out Justice Naik from the meeting. On the other hand, Shinde in that letter had requested Justice Naik to suggest names of persons to be considered which prima facie negatives any intention on his part to keep Justice Naik away from the meeting. There is also nothing in the materials on the record to show that the correspondence cited above was perused by the Chancellor either at the time when the show cause notice was given to the appellant or at the time of making the impugned Order. It cannot, therefore, be assumed that the governor was influenced by the above correspondence. It is rather unfortunate that the appellants Writ Petition was dismissed in limine and without a proper appreciation of all the relevant facts. There is little doubt that the impugned Order made by the Chancellor was based entirely on the legality of the meeting where only two out of three members were present when the name of the appellant was recommended. The High Court delved into the correspondence to sustain the order of the Chancellor on grounds other than those relied upon by him in that order for dismissing the Writ Petition in limine, which in our view, was not justified. It is also not denied that the meeting held by two of the three members on the 4th April 1970 was legal because sufficient notice was given to all the three members. If for one reason or the other one of them could not attend, that does not make the meeting of others illegal. In such circumstances, where there is no rule or regulation or any other provision for fixing the quorum, the presence of the majority of the members would constitute it a valid meeting and matters considered thereat cannot be held to be invalid
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WG. CDR. ARIFUR RAHMAN KHAN AND ALEYA SULTANA Vs. DLF SOUTHERN HOMES PVT. LTD. (NOW KNOWN AS BEGUR OMR HOMES PVT. LTD.) | the entire project of 1830 apartments through individual ll KV feeders from Golahalli 66/llKV Substation. On this basis, the costing for infrastructure towards provisioning of utilities as per clause 1.14, 1.15, 23(b) and JDC of ABA was estimated at rate Rs. 127.96/sft., which was reflected in the Final Demand to D Block customers. However, after a detailed evaluation of the load requirement for the project as per norms, BESCOM has now stipulated that, in accordance with clause 3.2.4 of KERC Regulations, we establish a dedicated 66/11 kv Substation within our project site to cater to the needs of the project, instead of the earlier proposed scheme of 11 Kv feeders from Golahalli. The increase in cost because of this new sub-station and allied works, over and above the originally envisaged 11KV scheme is estimated @Rs. 18.01 Cr., thereby increasing the total infrastructure cost recovery towards provisioning of utilities to Rs. 188.00/sft. In view of the above said amounts are being recovered on the basis of provisional estimates. On commissioning and energizing the substation, the company shall arrange a certificate from independent chartered accountant/ chartered engineer to arrive at the actual cost incurred. Your share of the said actual cost by the Company shall be duly intimated to you accordingly. If it is found that excess amount paid by you, over and above the actual cost incurred by the company, said excess amount so collected shall be refunded to you without interest. If the actual expenses exceeds the estimated amount computed @Rs. 188/-sq. ft. then demand for the shortfall amount shall be raised through further demand on the owner of the property and shall be payable by you. We would further like to bring to your kind attention that the provision of 66/llKV substation will ensure better quality uninterrupted power supply as compared with the previously planned scheme of 11KV reeders. 50. Mr. R. Balasubramanian, learned Senior Counsel contends that clause 23(b) relates to receiving and distributing the bulk supply of electrical energy to the said project /said complex which is defined as project under the name and style of New Town DLF BTM Extension. According to the submission, the charges have been collected for the entire New Town project and not for Westend Heights alone. In this context it has also been submitted that distribution of electricity is governed by the KERC Regulations 2006. While planning the project, the developer calculated the cost of the 66/11 KV sub-station and collected charges from each of the 1830 buyers. Hence, it has been submitted that there was no requirement of additional bulk supply of electricity for the nineteen hundred buyers. In this context, the formulation in the written submissions is extracted below: (under) regulation 3.02 (e) of KERC (Conditions of Supply of Electricity by the Distribution Licensee) Regulations 2004, it is mandatory to set up 66 KV supply line/ KV substation if the demands goes beyond 7500 KVA. Further under regulation 3.2.4 KERC (Recovery of Expenditure for Supply of Electricity) Regulations 2004 :In case of layouts/buildings requiring power supply and the requisitioned load is more than 7500 KVA, the developer/ Applicant shall provide the space for erection of sub-station and also bear the entire charges of such a sub-station and associated lines/equipments. The work shall be carried out either by the Licensee duly recovering the charges as per estimate or by the Applicant himself through appropriate class of licensed contractor by paying 10% of the estimate as supervision charges to the Licensee. 51. The NCDRC has upheld the collection of the charges towards electricity based on the terms of the ABA. There is no infirmity in the finding of the NCDRC, which is based on the provisions contained in clause 23(b) of the ABA. The charges recovered are not contrary to what was specified in the contract between the parties. Parking 52. The appellants seek a refund of an amount of Rs. 2.25 lacs collected from each buyer towards car parking. The submission is that under Section 3(f) of the Karnataka Apartment Ownership Act 1972 (KAO Act) , common areas and facilities include parking areas. According to the appellants, the flat buyers had already paid for the super area in terms of clause 1.6 of ABA including common areas and facilities which would be deemed to include car parking under the KAO Act. The relevant portion of clause 1.6 is extracted below: 1.6. The Allottee agrees that the Total price of the said Apartment is calculated on the basis of its Super Area only (as indicated in clause 1.1.) except the parking space, additional car parking space which are based on fixed valuation….(emphasis supplied) 53. We are unable to accede to the above submission. The ABA contained a break-up of the total price of the apartment. Parking charges for exclusive use of earmarked parking spaces were separately included in the break-up. The parking charges were revealed to the flat buyers in the brochure. The charges recovered are in terms of the agreement. 54. The decision of this Court in Nahalchand Laloochand Private Limited v. Panchali Cooperative Housing Society Limited (2010) 9 SCC 536 turned on the provisions of the Maharashtra Ownership Flats Act 1971, as explained in the subsequent decision of this Court in DLF Limited v. Manmohan Lowe (2014) 12 SCC 231 . The demand of parking charges is in terms of the ABA and hence it is not possible to accede to the submission that there was a deficiency of service under this head. 55. For the above reasons we have come to the conclusion that the dismissal of the complaint by the NCDRC was erroneous. The flat buyers are entitled to compensation for delayed handing over of possession and for the failure of the developer to fulfil the representations made to flat buyers in regard to the provision of amenities. The reasoning of the NCDRC on these facets suffers from a clear perversity and patent errors of law which have been noticed in the earlier part of this judgment. | 1[ds]19. Clause 11(a) of the ABA indicates that subject to all just exceptions the developer endeavoured to complete construction within a period of thirty-six months from the date of the execution of the agreement unless hindered by force majeure conditions. Undoubtedly, the expression endeavour indicates that the developer did not bind itself to an inflexible timeline of thirty-six months. But then again, the timeline of thirty-six moths was subject to just exceptions and could be excused in the event of force majeure conditions coming into operation. By the provisions of clause 14, the developer agreed to compensate the flat buyers at the rate of Rs. 5 per square feet of the super area of the apartment per month for the period of delay.21. The existence and extent of the delay constitute an admitted factual position. In fact, in the written submissions which have been filed by the developer, it has been admitted that out of 171 appellants, 145 were given compensation in terms of the rate prescribed in clause 14 of the ABA. Once the developer has accepted that there was a delay on his part which triggered of the liability to pay compensation (albeit, according to the developer, in terms of clause 14) there can be no manner of doubt that:(i) the developer assumed an obligation in terms of the ABA to endeavour to hand over possession in thirty-six months of the date of the execution of the agreement;(ii) there was a failure on the part of the developer to comply with the contractual obligation;(iii) the failure of the developer was neither relatable to a just exception or the prevalence of force majeure conditions referable to clause 11; and(iv) the payment of compensation to the flat buyers or at least 145 of the group of 171 represents an admission by the developer of its breach, thereby triggering a liability to pay compensation.In assessing the legal position, it is necessary to record that the ABA is clearly one-sided. Where a flat purchaser pays the instalments that are due in terms of the agreement with a delay, clause 39(a) stipulates that the developer would at its sole option and discretion waive a breach by the allottee of failing to make payments in accordance with the schedule, subject to the condition that the allottee would be charged interest at the rate of 15 per cent per month for the first ninety days and thereafter at an additional penal interest of 3 per cent per annum. In other words, a delay on the part of the flat buyer attracts interest at the rate of 18 per cent per annum beyond ninety days. On the other hand, where a developer delays in handing over possession the flat buyer is restricted to receiving interest at Rs 5 per square foot per month under clause 14 (which in the submission of Mr Prashant Bhushan works out to 1-1.5 per cent interest per annum). Would the condition which has been prescribed in clause 14 continue to bind the flat purchaser indefinitely irrespective of the length of the delay The agreement stipulates thirty-six months as the date for the handing over of possession. Evidently, the terms of the agreement have been drafted by the developer. They do not maintain a level platform as between the developer and purchaser. The stringency of the terms which bind the purchaser are not mirrored by the obligations for meeting times lines by the developer. The agreement does not reflect an even bargain.The agreement did not stipulate that the developer would pay any interest on the amount which had already been received. A large chunk of the purchase price was thus available to the developer to complete construction. The court must take a robust and common-sense based approach by taking judicial notice of the fact that flat purchasers obtain loans and are required to pay EMIs to financial institutions for servicing their debt. Delays on the part of the developer in handing over possession postpone the date on which purchasers will obtain a home. Besides servicing their loans, purchasers have to finance the expenses of living elsewhere. To postulate that a clause in the agreement confining the right of the purchaser to receive compensation at the rate of Rs 5 per square foot per month (Rs 7,500 per month for a flat of 1500 square feet) precludes any other claim would be a manifestly unreasonable construction of the rights and obligations of the parties. Where there is a delay of the nature that has taken place in the present case ranging between periods of two years and four years, the jurisdiction of the consumer forum to award reasonable compensation cannot be foreclosed by a term of the agreement.24. A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service. The expression service in Section 2 (1) (o) means a service of any description which is made available to potential users including the provision of facilities in connection with (among other things) housing construction. Under Section 14(1)(e), the jurisdiction of the consumer forum extends to directing the opposite party inter alia to remove the deficiency in the service in question. Intrinsic to the jurisdiction which has been conferred to direct the removal of a deficiency in service is the provision of compensation as a measure of restitution to a flat buyer for the delay which has been occasioned by the developer beyond the period within which possession was to be handed over to the purchaser. Flat purchasers suffer agony and harassment, as a result of the default of the developer. Flat purchasers make legitimate assessments in regard to the future course of their lives based on the flat which has been purchased being available for use and occupation. These legitimate expectations are belied when the developer as in the present case is guilty of a delay of years in the fulfilment of a contractual obligation. To uphold the contention of the developer that the flat buyer is constrained by the terms of the agreed rate irrespective of the nature or extent of delay would result in a miscarriage of justice. Undoubtedly, as this court held in Dhanda, courts ordinarily would hold parties down to a contractual bargain. Equally the court cannot be oblivious to the one-sided nature of ABAs which are drafted by and toprotect the interest of the developer. Parliament consciously designed remedies in the CP Act 1986 to protect consumers. Where, as in the present case, there has been a gross delay in the handing over of possession beyond the contractually stipulated debt, we are clearly of the view that the jurisdiction of the consumer forum to award just and reasonable compensation as an incident of its power to direct the removal of a deficiency in service is not constrained by the terms of a rate which is prescribed in an unfair bargain.Since the decision of this Court in Lucknow Development Authority v. M K Gupta (1994) 1 SCC 243 , it has been a settled principle of law that the jurisdiction of the consumer forum extends to the award of compensation to alleviate the harassment and agony to a consumer.31. The judgment in Dhanda s case does not prescribe an absolute embargo on the award of compensation beyond the rate stipulated in the flat buyers agreement where handing over of the possession of a flat has been delayed. Dh an d as case was preceded by consent terms which were presented before this Court in two earlier civil appeals under which interest at the rate of 9 per cent had been granted. The decision lays down that the award of interest cannot be arbitrary and without nexus to the default which has been committed. Hence, the award of interest at the maximum rate of interest charged by a nationalised bank for advancing home loans was construed to be arbitrary. It was in this context that the court observed that the parties having agreed to a consequence for delay, exceptional and strong reasons must exist for the consumer fora to depart from the agreed rate. The decision, in other words, does not lay down that there is an absence of jurisdiction in the adjudicatory fora constituted under the CP Act 1986 to award remedial compensation to a flat buyer for the delay of the developer in handing over possession on the agreed date.32. In the present case, there exist, clear and valid reasons for not holding down the flat buying consumers merely to the entitlement to receive compensation at the rate of 5 per square foot per month in terms of clause 14 of the ABA32. In the present case, there exist, clear and valid reasons for not holding down the flat buying consumers merely to the entitlement to receive compensation at the rate of 5 per square foot per month in terms of clause 14 of the(i) There has been a breach on the part of the developer in complying with the contractual obligation to hand over possession of the flats within a period of thirty-six months of the date of the agreement as stipulated in clause 11(a);(ii) The failure of the developer to hand over possession within the contractually stipulated period amounts to a deficiency of service within the meaning of Section 2 (1) (g), warranting the invocation of the jurisdiction vested in the NCDRC to issue a direction for the removal of the deficiency in service;(iii) The triggering of an obligation to pay compensation on the existence of delay in handing over possession is admitted by the developer for, even according to it, it has adjusted compensation at the agreed rate of Rs 5 per square foot per month to 145 out of the 171 appellants;(iv) The agreement is manifestly one-sided: the rights provided to the developer for a default on the part of the home buyer are not placed on an equal platform with the contractual right provided to the home buyer in the case of a default by the developer;(v) There has been a gross delay on the part of the developer in completing construction ranging between two and four years. Despite successive extensions of time to deliver possession sought by the developer, possession was not delivered on time;(vi) The nature and quantum of the delay on the part of the developer are of such a nature that the measure of compensation which is provided in clause 14 of the ABA would not provide sufficient recompense to the purchasers; and(vii) Judicial notice ought to be taken of the fact that a flat purchaser who is left in the lurch as a result of the failure of the developer to provide 33 possession within the contractually stipulated date suffers consequences in terms of agony and hardship, not the least of which is financial in nature. Having paid a substantial amount of the purchase price to the developer and being required to service the debt towards loan installments the purchaser is unable to obtain timely possession of the flat which is the subject matter of the ABA.The developer does not state that it was willing to offer the flat purchasers possession of their flats and the right to execute conveyance of the flats while reserving their claim for compensation for delay. On the contrary, the tenor of the communications indicates that while executing the Deeds of Conveyance, the flat buyers were informed that no form of protest or reservation would be acceptable. The flat buyers were essentially presented with an unfair choice of either retaining their right to pursue their claims (in which event they would not get possession or title in the meantime) or to forsake the claims in order to perfect their title to the flats for which they had paid valuable consideration. In this backdrop, the simple question which we need to address is whether a flat buyer who seeks to espouse a claim against the developer for delayed possession can as a consequence of doing so be compelled to defer the right to obtain a conveyance to perfect their title. It would, in our view, be manifestly unreasonable to expect that in order to pursue a claim for compensation for delayed handing over of possession, the purchaser must indefinitely defer obtaining a conveyance of the premises purchased or, if they seek to obtain a Deed of Conveyance to forsake the right to claim compensation. This basically is a position which the NCDRC has espoused. We cannot countenance that view.35. The flat purchasers invested hard earned money. It is only reasonable to presume that the next logical step is for the purchaser to perfect the title to the premises which have been allotted under the terms of the ABA. But the submission of the developer is that the purchaser forsakes the remedy before the 36 consumer forum by seeking a Deed of Conveyance. To accept such a construction would lead to an absurd consequence of requiring the purchaser either to abandon a just claim as a condition for obtaining the conveyance or to indefinitely delay the execution of the Deed of Conveyance pending protracted consumer litigation.The developer in the present case has undertaken to provide a service in the nature of developing residential flats with certain amenities and remains amenable to the jurisdiction of the Consumer Fora. Consequently, we are unable to subscribe to the view of the NCDRC that flat purchasers who obtained possession or executed Deeds of Conveyance have lost their right to make a claim for compensation for the delayed handing over of the flats.37. However, the cases of the eleven purchasers who entered into specific settlement deeds with the developers have to be segregated. In the case of these eleven persons, we are of the view that it would be appropriate if their cases are excluded from the purview of the present order. These eleven flat purchasers having entered into specific deeds of settlement, it would be only appropriate and proper if they are held down to the terms of the bargain. We are not inclined to accept the contention of the learned counsel of the appellants, Mr. Prashant Bhushan, that the settlement deeds were executed under coercion or undue influence since no specific material has been produced on record to demonstrate the same.38. Similarly, the three appellants who have transferred their title, right and interest in the apartments would not be entitled to the benefit of the present order since they have sold their interest in the apartments to third parties. The written submissions which have been filed before this Court indicate that the two buyers stepped into the shoes of the first buyers as a result of the assignment of rights and liabilities by the first buyer in favour of the second buyer.Even if the three appellants who had transferred their interest in the apartments had continued to agitate on the issue of delay of possession, we are not inclined to accept the submission that the subsequent transferees can step into the shoes of the original buyer for the purpose of benefiting from this order. The subsequent transferees in spite of being aware of the delay in delivery of possession the flats, had purchased the interest in the apartments from the original buyers. Further, it cannot be said that the subsequent transferees suffered any agony and harassment comparable to that of the first buyers, as a result of the delay in the delivery of possession in order to be entitled to compensation.40. The developer has stated before the court that a club house containing appurtenant facilities including a swimming pool, gymnasium, billiards room, tennis court, indoor badminton court, squash court and community hall has been fully constructed and an occupation certificate has been received on 13 May 2019. The developer has stated that under the building regulations, it has to handover 5 per cent of the area of the group housing complex to BDA as a civic amenities ( CA) area. The RWA has to apply to BDA for allotment of the CA area in its favour. Upon allotment, the RWA hands over the area to the builder for construction of the club. The developer relinquished the CA area in favour of the BDA, constituted an RWA and applied to BDA on 22 June 2010 for the allotment of the CA site in favour of the RWA. The written submissions indicate that a dispute over the charges demanded by BDA towards lease rent led to a writ petition before the Karnataka High Court being instituted both by the developer and the RWA which was allowed on 29 June 2015. The developer submitted a building plan to the municipal body. A second writ petition had to be filed in which the High Court on 18 October 2016 directed the municipal body to proceed with the approval of the building plans. Sanction for the building plan was received on 18 May 2017 and after construction of the club building, an occupation certificate was received on 13 May 2019. The developer has stated that it has been following up with BDA to permit them to hand over possession and management of the club to the RWA. Since permission of BDA has still not been received legal action is contemplated again. The developer has produced photographs depicting the amenities which have been provided within the precincts of the club house. Membership fees for the club are stated to have been received in the account of the RWA and not in the account of the developer. The position which has been stated before the court as elucidated above has not been disputed by counsel for the appellants. Hence, we find that there has been no breach by the developer of the obligation to provide a constructed facility of a club for the RWA.42. Now, it is correct as the developer contends that the flat purchasers have no right, title or interest in respect of the amenities which were to be constructed by the developer as a part of the larger township of New Town. The entire area comprised 80 acres of which Westend Heights was situated on 27 acres. The absence of a title or interest in the flat purchasers in the amenities to be provided outside the area of 27 acres begs the question as to whether there was a breach of a clear representation which was held out to the flat purchasers by the developer. A deficiency under Section 2(1)(g) means a fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance. This may be required to be maintained under law or may be undertaken to be performed in pursuance of a contract or otherwise in relation to any service. The builder invited prospective flat purchasers to invest in the project of Westend Heights on the basis of a clear representation that the surrounding area of New Town situated on 80 acres was being developed to provide a wide range of amenities including a shopping centre, health care facilities and an early learning school. The developer has failed to provide these amenities.43. In other words, what the developer holds out as a defence is that though there has been a failure on their part to provide the amenities, the flat buyers have the benefit of facilities in the surrounding area which has become urbanised. We cannot agree with this line of submissions. The reply of the developer seeks to explain the failure to construct the facilities on the ground that the existing population cannot sustain these facilities – a school, commercial complex and health care facilities. This is a case involving an experienced developer who knew the nature of the representation which was being held out to the flat purchasers. Developers sell dreams to home buyers. Implicit in their representations is that the facilities which will be developed by the developer will provide convenience of living and a certain lifestyle based on the existence of those amenities. Having sold the flats, the developer may find it economically unviable to provide the amenities. The flat purchasers cannot be left in the lurch or, as in the present case, be told that the absence of facilities which were to be provided by the developer is compensated by other amenities which are available in the area. The developer must be held accountable to its representation. A flat purchaser who invests in a flat does so on an assessment of its potential. The amenities which the builder has committed to provide impinge on the quality of life for the families of purchasers and the potential for appreciation in the value of the flat. The representation held out by the developer cannot be dismissed as chaff. True, in a situation such as the present it may be difficult for the court to quantify the exact nature of the compensation that should be provided to the flat buyers. The general appreciation in land values results in an increase in the value of the investment made by the buyers. Difficulties in determining the measure of compensation cannot however dilute the liability to pay. A developer who has breached a clear representation which has been made to the buyers of the amenities which will be provided to them should be held accountable to the process of law. To allow the developer to escape their obligation would put a premium on false assurances and representations made to the flat purchasers. Hence, in factoring in the compensation which should be provided to the flat buyers who are concerned in the present batch of appeals, we would necessarily have to bear this issue in mind.45. The two certificates of the Chartered Accountant issued on 26 July 2013 and 9 August 2014 indicate that taxes inclusive of interest have been recovered.47. The specific conditions contained in the ABA clearly imposed the liability to bear the proportionate share of taxes on the purchasers. Clauses 1.3 and 1.10 leave no manner of doubt in regard to the position. The developer has offered an explanation of why as a result of pending litigation, the dues towards works contract tax were not paid earlier. Indeed, if they were paid earlier, the purchasers would have been required to reimburse their proportionate share of taxes earlier as well. No part of the penalty imposed on the developer has been passed on to the purchasers. In view of the terms of the ABA and the explanation which has been submitted by the developer, there is no deficiency of service in regard to the demand of interest payable on the tax which was required to be deposited with the revenue.51. The NCDRC has upheld the collection of the charges towards electricity based on the terms of the ABA. There is no infirmity in the finding of the NCDRC, which is based on the provisions contained in clause 23(b) of the ABA. The charges recovered are not contrary to what was specified in the contract between the parties.53. We are unable to accede to the above submission. The ABA contained a break-up of the total price of the apartment. Parking charges for exclusive use of earmarked parking spaces were separately included in the break-up. The parking charges were revealed to the flat buyers in the brochure. The charges recovered are in terms of the agreement.54. The decision of this Court in Nahalchand Laloochand Private Limited v. Panchali Cooperative Housing Society Limited (2010) 9 SCC 536 turned on the provisions of the Maharashtra Ownership Flats Act 1971, as explained in the subsequent decision of this Court in DLF Limited v. Manmohan Lowe (2014) 12 SCC 231 . The demand of parking charges is in terms of the ABA and hence it is not possible to accede to the submission that there was a deficiency of service under this head.55. For the above reasons we have come to the conclusion that the dismissal of the complaint by the NCDRC was erroneous. The flat buyers are entitled to compensation for delayed handing over of possession and for the failure of the developer to fulfil the representations made to flat buyers in regard to the provision of amenities. The reasoning of the NCDRC on these facets suffers from a clear perversity and patent errors of law which have been noticed in the earlier part of this judgment. | 1 | 15,845 | 4,409 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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the entire project of 1830 apartments through individual ll KV feeders from Golahalli 66/llKV Substation. On this basis, the costing for infrastructure towards provisioning of utilities as per clause 1.14, 1.15, 23(b) and JDC of ABA was estimated at rate Rs. 127.96/sft., which was reflected in the Final Demand to D Block customers. However, after a detailed evaluation of the load requirement for the project as per norms, BESCOM has now stipulated that, in accordance with clause 3.2.4 of KERC Regulations, we establish a dedicated 66/11 kv Substation within our project site to cater to the needs of the project, instead of the earlier proposed scheme of 11 Kv feeders from Golahalli. The increase in cost because of this new sub-station and allied works, over and above the originally envisaged 11KV scheme is estimated @Rs. 18.01 Cr., thereby increasing the total infrastructure cost recovery towards provisioning of utilities to Rs. 188.00/sft. In view of the above said amounts are being recovered on the basis of provisional estimates. On commissioning and energizing the substation, the company shall arrange a certificate from independent chartered accountant/ chartered engineer to arrive at the actual cost incurred. Your share of the said actual cost by the Company shall be duly intimated to you accordingly. If it is found that excess amount paid by you, over and above the actual cost incurred by the company, said excess amount so collected shall be refunded to you without interest. If the actual expenses exceeds the estimated amount computed @Rs. 188/-sq. ft. then demand for the shortfall amount shall be raised through further demand on the owner of the property and shall be payable by you. We would further like to bring to your kind attention that the provision of 66/llKV substation will ensure better quality uninterrupted power supply as compared with the previously planned scheme of 11KV reeders. 50. Mr. R. Balasubramanian, learned Senior Counsel contends that clause 23(b) relates to receiving and distributing the bulk supply of electrical energy to the said project /said complex which is defined as project under the name and style of New Town DLF BTM Extension. According to the submission, the charges have been collected for the entire New Town project and not for Westend Heights alone. In this context it has also been submitted that distribution of electricity is governed by the KERC Regulations 2006. While planning the project, the developer calculated the cost of the 66/11 KV sub-station and collected charges from each of the 1830 buyers. Hence, it has been submitted that there was no requirement of additional bulk supply of electricity for the nineteen hundred buyers. In this context, the formulation in the written submissions is extracted below: (under) regulation 3.02 (e) of KERC (Conditions of Supply of Electricity by the Distribution Licensee) Regulations 2004, it is mandatory to set up 66 KV supply line/ KV substation if the demands goes beyond 7500 KVA. Further under regulation 3.2.4 KERC (Recovery of Expenditure for Supply of Electricity) Regulations 2004 :In case of layouts/buildings requiring power supply and the requisitioned load is more than 7500 KVA, the developer/ Applicant shall provide the space for erection of sub-station and also bear the entire charges of such a sub-station and associated lines/equipments. The work shall be carried out either by the Licensee duly recovering the charges as per estimate or by the Applicant himself through appropriate class of licensed contractor by paying 10% of the estimate as supervision charges to the Licensee. 51. The NCDRC has upheld the collection of the charges towards electricity based on the terms of the ABA. There is no infirmity in the finding of the NCDRC, which is based on the provisions contained in clause 23(b) of the ABA. The charges recovered are not contrary to what was specified in the contract between the parties. Parking 52. The appellants seek a refund of an amount of Rs. 2.25 lacs collected from each buyer towards car parking. The submission is that under Section 3(f) of the Karnataka Apartment Ownership Act 1972 (KAO Act) , common areas and facilities include parking areas. According to the appellants, the flat buyers had already paid for the super area in terms of clause 1.6 of ABA including common areas and facilities which would be deemed to include car parking under the KAO Act. The relevant portion of clause 1.6 is extracted below: 1.6. The Allottee agrees that the Total price of the said Apartment is calculated on the basis of its Super Area only (as indicated in clause 1.1.) except the parking space, additional car parking space which are based on fixed valuation….(emphasis supplied) 53. We are unable to accede to the above submission. The ABA contained a break-up of the total price of the apartment. Parking charges for exclusive use of earmarked parking spaces were separately included in the break-up. The parking charges were revealed to the flat buyers in the brochure. The charges recovered are in terms of the agreement. 54. The decision of this Court in Nahalchand Laloochand Private Limited v. Panchali Cooperative Housing Society Limited (2010) 9 SCC 536 turned on the provisions of the Maharashtra Ownership Flats Act 1971, as explained in the subsequent decision of this Court in DLF Limited v. Manmohan Lowe (2014) 12 SCC 231 . The demand of parking charges is in terms of the ABA and hence it is not possible to accede to the submission that there was a deficiency of service under this head. 55. For the above reasons we have come to the conclusion that the dismissal of the complaint by the NCDRC was erroneous. The flat buyers are entitled to compensation for delayed handing over of possession and for the failure of the developer to fulfil the representations made to flat buyers in regard to the provision of amenities. The reasoning of the NCDRC on these facets suffers from a clear perversity and patent errors of law which have been noticed in the earlier part of this judgment.
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whether there was a breach of a clear representation which was held out to the flat purchasers by the developer. A deficiency under Section 2(1)(g) means a fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance. This may be required to be maintained under law or may be undertaken to be performed in pursuance of a contract or otherwise in relation to any service. The builder invited prospective flat purchasers to invest in the project of Westend Heights on the basis of a clear representation that the surrounding area of New Town situated on 80 acres was being developed to provide a wide range of amenities including a shopping centre, health care facilities and an early learning school. The developer has failed to provide these amenities.43. In other words, what the developer holds out as a defence is that though there has been a failure on their part to provide the amenities, the flat buyers have the benefit of facilities in the surrounding area which has become urbanised. We cannot agree with this line of submissions. The reply of the developer seeks to explain the failure to construct the facilities on the ground that the existing population cannot sustain these facilities – a school, commercial complex and health care facilities. This is a case involving an experienced developer who knew the nature of the representation which was being held out to the flat purchasers. Developers sell dreams to home buyers. Implicit in their representations is that the facilities which will be developed by the developer will provide convenience of living and a certain lifestyle based on the existence of those amenities. Having sold the flats, the developer may find it economically unviable to provide the amenities. The flat purchasers cannot be left in the lurch or, as in the present case, be told that the absence of facilities which were to be provided by the developer is compensated by other amenities which are available in the area. The developer must be held accountable to its representation. A flat purchaser who invests in a flat does so on an assessment of its potential. The amenities which the builder has committed to provide impinge on the quality of life for the families of purchasers and the potential for appreciation in the value of the flat. The representation held out by the developer cannot be dismissed as chaff. True, in a situation such as the present it may be difficult for the court to quantify the exact nature of the compensation that should be provided to the flat buyers. The general appreciation in land values results in an increase in the value of the investment made by the buyers. Difficulties in determining the measure of compensation cannot however dilute the liability to pay. A developer who has breached a clear representation which has been made to the buyers of the amenities which will be provided to them should be held accountable to the process of law. To allow the developer to escape their obligation would put a premium on false assurances and representations made to the flat purchasers. Hence, in factoring in the compensation which should be provided to the flat buyers who are concerned in the present batch of appeals, we would necessarily have to bear this issue in mind.45. The two certificates of the Chartered Accountant issued on 26 July 2013 and 9 August 2014 indicate that taxes inclusive of interest have been recovered.47. The specific conditions contained in the ABA clearly imposed the liability to bear the proportionate share of taxes on the purchasers. Clauses 1.3 and 1.10 leave no manner of doubt in regard to the position. The developer has offered an explanation of why as a result of pending litigation, the dues towards works contract tax were not paid earlier. Indeed, if they were paid earlier, the purchasers would have been required to reimburse their proportionate share of taxes earlier as well. No part of the penalty imposed on the developer has been passed on to the purchasers. In view of the terms of the ABA and the explanation which has been submitted by the developer, there is no deficiency of service in regard to the demand of interest payable on the tax which was required to be deposited with the revenue.51. The NCDRC has upheld the collection of the charges towards electricity based on the terms of the ABA. There is no infirmity in the finding of the NCDRC, which is based on the provisions contained in clause 23(b) of the ABA. The charges recovered are not contrary to what was specified in the contract between the parties.53. We are unable to accede to the above submission. The ABA contained a break-up of the total price of the apartment. Parking charges for exclusive use of earmarked parking spaces were separately included in the break-up. The parking charges were revealed to the flat buyers in the brochure. The charges recovered are in terms of the agreement.54. The decision of this Court in Nahalchand Laloochand Private Limited v. Panchali Cooperative Housing Society Limited (2010) 9 SCC 536 turned on the provisions of the Maharashtra Ownership Flats Act 1971, as explained in the subsequent decision of this Court in DLF Limited v. Manmohan Lowe (2014) 12 SCC 231 . The demand of parking charges is in terms of the ABA and hence it is not possible to accede to the submission that there was a deficiency of service under this head.55. For the above reasons we have come to the conclusion that the dismissal of the complaint by the NCDRC was erroneous. The flat buyers are entitled to compensation for delayed handing over of possession and for the failure of the developer to fulfil the representations made to flat buyers in regard to the provision of amenities. The reasoning of the NCDRC on these facets suffers from a clear perversity and patent errors of law which have been noticed in the earlier part of this judgment.
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Anil Anand & Others Vs. State of Haryana & Others | Leave granted. 2. Heard the learned counsels for the parties and perused the relevant material. 3. The challenge in this appeal is against the order dated 22.12.2011 of the High Court of Punjab and Haryana by which the criminal proceedings registered against the accused-appellants have been directed to be continued and prayer for quashing thereof have been refused by the High Court. 4. The special leave petition was kept pending by this Court to await the orders of the Delhi High Court in the appeal filed by the Respondent No.2 under Section 10(f) of the Companies Act, 1956 against the order of the Company Law Board dismissing the petition filed by the said Respondent No.2 alleging oppression and mismanagement. The aforesaid proceedings have culminated in order adverse to the complainant-respondent No.2 leaving him with the option of exiting the company by shedding off his share holding at a valuation to be made. The aforesaid order of the High Court upholding the order of Company Law Board has since attained finality in law as the challenge thereto in a Special Leave Petition has not yielded any result. 5. We have taken note of the order of the Company Law Board and of the High Court, referred to above, not for the purpose of judging the tenability of the allegations made in the complaint which inter alia on the strength of the Constitution Bench judgment in M.S. Sheriff and Another v. State of Madras reported in AIR 1954 SC 397 , has to be decided on its own merits. However, certain admitted and relevant facts as found by the Company Law Board and the High Court, in the orders referred to above, would in our considered view have relevance to judging the bonafides of the complainant in instituting the complaint-petition and the reasonable chances of the prosecution being successful so as to permit continuance thereof. The gravamen of the allegations in the complaint are in respect of the removal of the respondents from the Board of Directors of the Company on the basis of forged/fraudulent document. 6. In this regard we may take note of the fact that in paragraph 29 of the High Court judgment in Co.A.(SB)40/2013 dated 27.01.2016, it has been recorded that at no point of time any complaint was made by the respondents with regard to their alleged illegal/fraudulent removal from the Board of Directors of the Company and the grievances expressed were only with regard to non-receipt of audited statement of accounts and regarding the holding of the Annual General Meetings. 7. The High Court in paragraph 29 of its order, on consideration of the cases of the rival parties, thought it proper to hold that the present appears to be a case where the respondent(s) had indicated a clear desire to resign from the company and dis-associate themselves with the other members of the Company. Coupled with the aforesaid fact is the fact that the proceedings before the Company Law Board were initiated in the year 2008 whereas the alleged illegal removal from the directorship had occurred in the year 2004. If the respondent(s) in their perspective continued to be the directors, we do not see how they could have remained silent with regard to their alleged illegal removal inasmuch as in the event they continued to be directors they were entitled to receive notice of Board meetings and participate therein. The long silence of respondent(s) to raise any protest in this regard raises doubt on the acceptability of the allegations made in the complaint petition. That apart it may be noticed that even before Company Law Board the respondent(s) had not alleged any forgery etc. of the Board resolutions which came to be made only in the year 2009 in the complaint filed.8. All these would lead us to irresistibly conclude that the allegations made in the complaint petition are after thoughts and having regard to the admitted facts of the case evident from the orders of the Company Law Board and the High Court the prosecution against the accused-appellants is bound to become sham/lame prosecution which must be brought to an end at the threshold by an order quashing the same. Continuance of any such prosecution would constitute an act of oppression on the petitioners. | 1[ds]7. The High Court in paragraph 29 of its order, on consideration of the cases of the rival parties, thought it proper to hold that the present appears to be a case where the respondent(s) had indicated a clear desire to resign from the company andthemselves with the other members of the Company. Coupled with the aforesaid fact is the fact that the proceedings before the Company Law Board were initiated in the year 2008 whereas the alleged illegal removal from the directorship had occurred in the year 2004. If the respondent(s) in their perspective continued to be the directors, we do not see how they could have remained silent with regard to their alleged illegal removal inasmuch as in the event they continued to be directors they were entitled to receive notice of Board meetings and participate therein. The long silence of respondent(s) to raise any protest in this regard raises doubt on the acceptability of the allegations made in the complaint petition. That apart it may be noticed that even before Company Law Board the respondent(s) had not alleged any forgery etc. of the Board resolutions which came to be made only in the year 2009 in the complaint filed.8. All these would lead us to irresistibly conclude that the allegations made in the complaint petition are after thoughts and having regard to the admitted facts of the case evident from the orders of the Company Law Board and the High Court the prosecution against theis bound to become sham/lame prosecution which must be brought to an end at the threshold by an order quashing the same. Continuance of any such prosecution would constitute an act of oppression on the petitioners. | 1 | 766 | 311 | ### 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:
Leave granted. 2. Heard the learned counsels for the parties and perused the relevant material. 3. The challenge in this appeal is against the order dated 22.12.2011 of the High Court of Punjab and Haryana by which the criminal proceedings registered against the accused-appellants have been directed to be continued and prayer for quashing thereof have been refused by the High Court. 4. The special leave petition was kept pending by this Court to await the orders of the Delhi High Court in the appeal filed by the Respondent No.2 under Section 10(f) of the Companies Act, 1956 against the order of the Company Law Board dismissing the petition filed by the said Respondent No.2 alleging oppression and mismanagement. The aforesaid proceedings have culminated in order adverse to the complainant-respondent No.2 leaving him with the option of exiting the company by shedding off his share holding at a valuation to be made. The aforesaid order of the High Court upholding the order of Company Law Board has since attained finality in law as the challenge thereto in a Special Leave Petition has not yielded any result. 5. We have taken note of the order of the Company Law Board and of the High Court, referred to above, not for the purpose of judging the tenability of the allegations made in the complaint which inter alia on the strength of the Constitution Bench judgment in M.S. Sheriff and Another v. State of Madras reported in AIR 1954 SC 397 , has to be decided on its own merits. However, certain admitted and relevant facts as found by the Company Law Board and the High Court, in the orders referred to above, would in our considered view have relevance to judging the bonafides of the complainant in instituting the complaint-petition and the reasonable chances of the prosecution being successful so as to permit continuance thereof. The gravamen of the allegations in the complaint are in respect of the removal of the respondents from the Board of Directors of the Company on the basis of forged/fraudulent document. 6. In this regard we may take note of the fact that in paragraph 29 of the High Court judgment in Co.A.(SB)40/2013 dated 27.01.2016, it has been recorded that at no point of time any complaint was made by the respondents with regard to their alleged illegal/fraudulent removal from the Board of Directors of the Company and the grievances expressed were only with regard to non-receipt of audited statement of accounts and regarding the holding of the Annual General Meetings. 7. The High Court in paragraph 29 of its order, on consideration of the cases of the rival parties, thought it proper to hold that the present appears to be a case where the respondent(s) had indicated a clear desire to resign from the company and dis-associate themselves with the other members of the Company. Coupled with the aforesaid fact is the fact that the proceedings before the Company Law Board were initiated in the year 2008 whereas the alleged illegal removal from the directorship had occurred in the year 2004. If the respondent(s) in their perspective continued to be the directors, we do not see how they could have remained silent with regard to their alleged illegal removal inasmuch as in the event they continued to be directors they were entitled to receive notice of Board meetings and participate therein. The long silence of respondent(s) to raise any protest in this regard raises doubt on the acceptability of the allegations made in the complaint petition. That apart it may be noticed that even before Company Law Board the respondent(s) had not alleged any forgery etc. of the Board resolutions which came to be made only in the year 2009 in the complaint filed.8. All these would lead us to irresistibly conclude that the allegations made in the complaint petition are after thoughts and having regard to the admitted facts of the case evident from the orders of the Company Law Board and the High Court the prosecution against the accused-appellants is bound to become sham/lame prosecution which must be brought to an end at the threshold by an order quashing the same. Continuance of any such prosecution would constitute an act of oppression on the petitioners.
### Response:
1
### Explanation:
7. The High Court in paragraph 29 of its order, on consideration of the cases of the rival parties, thought it proper to hold that the present appears to be a case where the respondent(s) had indicated a clear desire to resign from the company andthemselves with the other members of the Company. Coupled with the aforesaid fact is the fact that the proceedings before the Company Law Board were initiated in the year 2008 whereas the alleged illegal removal from the directorship had occurred in the year 2004. If the respondent(s) in their perspective continued to be the directors, we do not see how they could have remained silent with regard to their alleged illegal removal inasmuch as in the event they continued to be directors they were entitled to receive notice of Board meetings and participate therein. The long silence of respondent(s) to raise any protest in this regard raises doubt on the acceptability of the allegations made in the complaint petition. That apart it may be noticed that even before Company Law Board the respondent(s) had not alleged any forgery etc. of the Board resolutions which came to be made only in the year 2009 in the complaint filed.8. All these would lead us to irresistibly conclude that the allegations made in the complaint petition are after thoughts and having regard to the admitted facts of the case evident from the orders of the Company Law Board and the High Court the prosecution against theis bound to become sham/lame prosecution which must be brought to an end at the threshold by an order quashing the same. Continuance of any such prosecution would constitute an act of oppression on the petitioners.
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International Amusement Limited Vs. India Trade Promotion Organization | said judgment contain the reasons for holding that the clause in the agreement cannot be construed as an arbitration clause. 20. At para 18 in P. Dasaratharama Reddy (supra), the case of State of Maharashtra v. Ranjeet Construction [AIR 1986 Bom 76 ] has been discussed wherein a two Judge Bench of this Court interpreted clause 30 of the agreement entered into between the parties, which is almost identical to the clauses under consideration, relying upon the judgment in the Tipper Chand (supra), and held that clause 30 cannot be relied upon by the parties for seeking reference of any dispute to an Arbitrator arising out of the contract. 21. At para 17 in the P. Dasaratharama Reddy Complex case (supra), the case of State of Orissa v. Damodar Das (supra) has also been examined, wherein the three Judge Bench of this Court interpreted clause 21 of the contract entered into between the parties. In the said case, this Court referred to clause 25 of the agreement, relied upon the judgment in State of U.P. v. Tipper Chand (supra) and held that the said clause cannot be interpreted for resolution of the dispute by an Arbitrator, the case fell for consideration of this Court in the case of State of Uttar Pradesh v. Tipper Chand (supra) which was relied upon in the said case is extracted at para 20 of the P. Dasaratharama Reddy case (supra) as under:- "20......(10)...... A reading of the above clause in the contract as a conjoint whole, would give us an indication that during the progress of the work or after the completion or the sooner determination thereof of the contract, the Public Health Engineer has been empowered to decide all questions relating to the meaning of the specifications, drawings, instructions hereinbefore mentioned and as to the quality of workmanship or material used on the work or as to any other question, claim, right, matter or thing whatsoever in any way arising out of, or relating to, the contract drawings, specifications, estimates, instructions, orders or those conditions or otherwise concerning the works or the execution or failure to execute the same has been entrusted to the Public Health Engineer and his decision shall be final. In other words, he is nominated only to decide the questions arising in the quality of the work or any other matters enumerated hereinbefore and his decision shall be final and bind the contractor. A clause in the contract cannot be split into two parts so as to consider one part to give rise to difference or dispute and another part relating to execution of work, its workmanship, etc. It is settled now that a clause in the contract must be read as a whole. If the construction suggested by the respondent is given effect then the decision of the Public Health Engineer would become final and it is not even necessary to have it made rule of the court under the Arbitration Act. It [pic]would be hazardous to the claim of a contractor to give such instruction and give power to the Public Health Engineer to make any dispute final and binding on the contractor. A careful reading of the clause in the contract would give us an indication that the Public Health Engineer is empowered to decide all the questions enumerated therein other than any disputes or differences that have arisen between the contractor and the Government. But for Clause 25, there is no other contract to refer any dispute or difference to an arbitrator named or otherwise." 22. Further, at paragraph 21 of the case of P. Dasaratharama Reddy (supra) the case of K.K. Modi v. K.N. Modi (supra) fell for consideration, wherein this Court interpreted clause 9 of the Memorandum of Understanding that was signed by the two groups of Modi family. The relevant portion from the said judgment with regard to interpretation of Clause 9 of the Memorandum of Understanding between the parties is extracted below:- "9. Implementation will be done in consultation with the financial institutions. For all disputes, clarifications, etc. in respect of implementation of this agreement, the same shall be referred to the Chairman, IFCI or his nominees whose decisions will be final and binding on both the groups." 23. Further, in the decision of P. Dasaratharama Reddy at para 30 referred to the case of Mallikarjun v. Gulbarga University [2004) 1 SCC 372 ] wherein it was held that the decision of the Superintending Engineer of Gulbarga Circle was final, conclusive and binding on all parties to the contract upon all questions relating to the meaning of the specifications, designs etc. whether arising during the progress of the work or after the completion or abandonment thereof in case of dispute arising between the contractor and the Gulbarga University. The case of Punjab State v. Dina Nath [(2007) 5 SCC 28] was also referred supporting the same view in the case of P. Dasaratharama Reddy (supra). In view of the aforesaid decisions and the law laid down by this Court in catena of cases referred to supra which are reiterated in the case of P. Dasaratharama Reddy (supra) we are of the view that the clause 28 in the agreement which is referred to in the case on hand is not an arbitration clause. Therefore, the appointment of an Arbitrator by the nominee of the Chief Justice has been rightly set aside in the impugned judgment by the Division Bench of the Delhi High Court. The law laid down by this Court in the above referred judgments, after interpretation of relevant arbitration clauses in the agreement in those cases, are aptly applicable to the fact situation on hand and we answer the questions of law framed by this Court against the appellant and in favour of the ITPO and Union of India. 24. The other proceedings involved in this case, if any, pending under the provisions of the P.P. Act before the Estate Officer, the same shall be continued by him. 25. | 0[ds]This Court must accept the contention of the learned senior counsel on behalf of the ITPO that the said clause in the licence agreement is not an arbitration agreement between the parties for the reasons discussed below. The three Judge Bench decision of this Court (of which two of us were members) in P. Dasaratharama Reddy Complex v. Government of Karnataka & Anr. [2014) 2 SCC 201 ], while examining a similar clause of an arbitration agreement, after careful consideration and interpretation of the clause, has held that in all the matters of dispute arising out of the agreement regarding quality of materials and work, etc., the decision of the Board of Directors of the Nagarika Yogbakashema Mathu Gruha Nirmana Sahakara Sangha, shall be final and binding on the part of the Contractor. Further, the case of Mysore Construction Company v. Karnataka Power Corporation Ltd. & Ors. [ILR 2000 KAR 4953] was discussed in P. Dasaratharama Reddy (supra) by this Court, at para 14, wherein, the Designated Judge has referred to the passage from Russell, on Arbitration (19th Edition, page 59) and the other judgments of this Court in K.K. Modi v. K.N. Modi and Ors., Chief Conservator of Forests, Rewa v. Ratan Singh Hans [AIR 1967 SC 166 ], Rukmanibai Gupta v. The Collector, Jabalpur [(1980) 4 SCC 556] , State of Uttar Pradesh v. Tipper Chand [(1980) 2 SCC 341] , State of Orissa v. Damodar Das [(1996) 2 SCC 216] , Bharat Bhushan Bansal v. Uttar Pradesh Small Industries Corporation Ltd., Kanpur [1992) 2 SCC 166] and observed that the decisions in the abovementioned cases make it clear by laying down the conditions, when an agreement or a clause in the agreement can be construed as an arbitration agreement between theat paragraph 16 of P. Dasaratharama Reddy (supra), the distinction between an expert determination and arbitration between the parties has been spelt out as per Russell, on Arbitration (21st Edn.) in the followingcases have been fought over whether a contracts chosen form of dispute resolution is expert determination or arbitration. This is a matter of construction of the contract, which involves an objective enquiry into the intentions of the parties. First, there are the express words of the disputes clause. If specific words such as arbitrator, Arbitral Tribunal, arbitration or the formula as an expert and not as an arbitrator are used to describe the manner in which the dispute resolver is to act, they are likely to be persuasive although not always conclusive.... Where there is no express wording, the court will refer to certain guidelines. Of these, the most important used to be, whether there was an issue between the parties such as the value of an asset on which they had not taken defined positions, in which case the procedure was [pic]held to be expert determination; or a formulated dispute between the parties where defined positions had been taken, in which case the procedure was held to be an arbitration. This imprecise concept is still being relied on. It is unsatisfactory because some parties to contract deliberately choose expert determination for dispute resolution. The next guideline is the judicial function of an Arbitral Tribunal as opposed to the expertise of the expert.... An Arbitral Tribunal arrives at its decision on the evidence and submissions of the parties and must apply the law or if the parties agree, on other consideration; an expert, unless it is agreed otherwise, makes his own enquiries, applies his own expertise and decides on his own expertwas further held that a clause substantially similar to the clauses referred to in P. Dasaratharama Reddy (supra) was interpreted by the three Judge Bench of this Court in the State of Uttar Pradesh v. Tipper Chand (supra) wherein paras 2 and 3 of the said judgment contain the reasons for holding that the clause in the agreement cannot be construed as an arbitrationpara 18 in P. Dasaratharama Reddy (supra), the case of State of Maharashtra v. Ranjeet Construction [AIR 1986 Bom 76 ] has been discussed wherein a two Judge Bench of this Court interpreted clause 30 of the agreement entered into between the parties, which is almost identical to the clauses under consideration, relying upon the judgment in the Tipper Chand (supra), and held that clause 30 cannot be relied upon by the parties for seeking reference of any dispute to an Arbitrator arising out of theA reading of the above clause in the contract as a conjoint whole, would give us an indication that during the progress of the work or after the completion or the sooner determination thereof of the contract, the Public Health Engineer has been empowered to decide all questions relating to the meaning of the specifications, drawings, instructions hereinbefore mentioned and as to the quality of workmanship or material used on the work or as to any other question, claim, right, matter or thing whatsoever in any way arising out of, or relating to, the contract drawings, specifications, estimates, instructions, orders or those conditions or otherwise concerning the works or the execution or failure to execute the same has been entrusted to the Public Health Engineer and his decision shall be final. In other words, he is nominated only to decide the questions arising in the quality of the work or any other matters enumerated hereinbefore and his decision shall be final and bind the contractor. A clause in the contract cannot be split into two parts so as to consider one part to give rise to difference or dispute and another part relating to execution of work, its workmanship, etc. It is settled now that a clause in the contract must be read as a whole. If the construction suggested by the respondent is given effect then the decision of the Public Health Engineer would become final and it is not even necessary to have it made rule of the court under the Arbitration Act. It [pic]would be hazardous to the claim of a contractor to give such instruction and give power to the Public Health Engineer to make any dispute final and binding on the contractor. A careful reading of the clause in the contract would give us an indication that the Public Health Engineer is empowered to decide all the questions enumerated therein other than any disputes or differences that have arisen between the contractor and the Government. But for Clause 25, there is no other contract to refer any dispute or difference to an arbitrator named orat paragraph 21 of the case of P. Dasaratharama Reddy (supra) the case of K.K. Modi v. K.N. Modi (supra) fell for consideration, wherein this Court interpreted clause 9 of the Memorandum of Understanding that was signed by the two groups of Modi family. The relevant portion from the said judgment with regard to interpretation of Clause 9 of the Memorandum of Understanding between the parties is extractedImplementation will be done in consultation with the financial institutions. For all disputes, clarifications, etc. in respect of implementation of this agreement, the same shall be referred to the Chairman, IFCI or his nominees whose decisions will be final and binding on both thein the decision of P. Dasaratharama Reddy at para 30 referred to the case of Mallikarjun v. Gulbarga University [2004) 1 SCC 372 ] wherein it was held that the decision of the Superintending Engineer of Gulbarga Circle was final, conclusive and binding on all parties to the contract upon all questions relating to the meaning of the specifications, designs etc. whether arising during the progress of the work or after the completion or abandonment thereof in case of dispute arising between the contractor and the Gulbarga University. The case of Punjab State v. Dina Nath [(2007) 5 SCC 28] was also referred supporting the same view in the case of P. Dasaratharama Reddy (supra). In view of the aforesaid decisions and the law laid down by this Court in catena of cases referred to supra which are reiterated in the case of P. Dasaratharama Reddy (supra) we are of the view that the clause 28 in the agreement which is referred to in the case on hand is not an arbitration clause. Therefore, the appointment of an Arbitrator by the nominee of the Chief Justice has been rightly set aside in the impugned judgment by the Division Bench of the Delhi High Court. The law laid down by this Court in the above referred judgments, after interpretation of relevant arbitration clauses in the agreement in those cases, are aptly applicable to the fact situation on hand and we answer the questions of law framed by this Court against the appellant and in favour of the ITPO and Union ofother proceedings involved in this case, if any, pending under the provisions of the P.P. Act before the Estate Officer, the same shall be continued by | 0 | 4,587 | 1,648 | ### 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:
said judgment contain the reasons for holding that the clause in the agreement cannot be construed as an arbitration clause. 20. At para 18 in P. Dasaratharama Reddy (supra), the case of State of Maharashtra v. Ranjeet Construction [AIR 1986 Bom 76 ] has been discussed wherein a two Judge Bench of this Court interpreted clause 30 of the agreement entered into between the parties, which is almost identical to the clauses under consideration, relying upon the judgment in the Tipper Chand (supra), and held that clause 30 cannot be relied upon by the parties for seeking reference of any dispute to an Arbitrator arising out of the contract. 21. At para 17 in the P. Dasaratharama Reddy Complex case (supra), the case of State of Orissa v. Damodar Das (supra) has also been examined, wherein the three Judge Bench of this Court interpreted clause 21 of the contract entered into between the parties. In the said case, this Court referred to clause 25 of the agreement, relied upon the judgment in State of U.P. v. Tipper Chand (supra) and held that the said clause cannot be interpreted for resolution of the dispute by an Arbitrator, the case fell for consideration of this Court in the case of State of Uttar Pradesh v. Tipper Chand (supra) which was relied upon in the said case is extracted at para 20 of the P. Dasaratharama Reddy case (supra) as under:- "20......(10)...... A reading of the above clause in the contract as a conjoint whole, would give us an indication that during the progress of the work or after the completion or the sooner determination thereof of the contract, the Public Health Engineer has been empowered to decide all questions relating to the meaning of the specifications, drawings, instructions hereinbefore mentioned and as to the quality of workmanship or material used on the work or as to any other question, claim, right, matter or thing whatsoever in any way arising out of, or relating to, the contract drawings, specifications, estimates, instructions, orders or those conditions or otherwise concerning the works or the execution or failure to execute the same has been entrusted to the Public Health Engineer and his decision shall be final. In other words, he is nominated only to decide the questions arising in the quality of the work or any other matters enumerated hereinbefore and his decision shall be final and bind the contractor. A clause in the contract cannot be split into two parts so as to consider one part to give rise to difference or dispute and another part relating to execution of work, its workmanship, etc. It is settled now that a clause in the contract must be read as a whole. If the construction suggested by the respondent is given effect then the decision of the Public Health Engineer would become final and it is not even necessary to have it made rule of the court under the Arbitration Act. It [pic]would be hazardous to the claim of a contractor to give such instruction and give power to the Public Health Engineer to make any dispute final and binding on the contractor. A careful reading of the clause in the contract would give us an indication that the Public Health Engineer is empowered to decide all the questions enumerated therein other than any disputes or differences that have arisen between the contractor and the Government. But for Clause 25, there is no other contract to refer any dispute or difference to an arbitrator named or otherwise." 22. Further, at paragraph 21 of the case of P. Dasaratharama Reddy (supra) the case of K.K. Modi v. K.N. Modi (supra) fell for consideration, wherein this Court interpreted clause 9 of the Memorandum of Understanding that was signed by the two groups of Modi family. The relevant portion from the said judgment with regard to interpretation of Clause 9 of the Memorandum of Understanding between the parties is extracted below:- "9. Implementation will be done in consultation with the financial institutions. For all disputes, clarifications, etc. in respect of implementation of this agreement, the same shall be referred to the Chairman, IFCI or his nominees whose decisions will be final and binding on both the groups." 23. Further, in the decision of P. Dasaratharama Reddy at para 30 referred to the case of Mallikarjun v. Gulbarga University [2004) 1 SCC 372 ] wherein it was held that the decision of the Superintending Engineer of Gulbarga Circle was final, conclusive and binding on all parties to the contract upon all questions relating to the meaning of the specifications, designs etc. whether arising during the progress of the work or after the completion or abandonment thereof in case of dispute arising between the contractor and the Gulbarga University. The case of Punjab State v. Dina Nath [(2007) 5 SCC 28] was also referred supporting the same view in the case of P. Dasaratharama Reddy (supra). In view of the aforesaid decisions and the law laid down by this Court in catena of cases referred to supra which are reiterated in the case of P. Dasaratharama Reddy (supra) we are of the view that the clause 28 in the agreement which is referred to in the case on hand is not an arbitration clause. Therefore, the appointment of an Arbitrator by the nominee of the Chief Justice has been rightly set aside in the impugned judgment by the Division Bench of the Delhi High Court. The law laid down by this Court in the above referred judgments, after interpretation of relevant arbitration clauses in the agreement in those cases, are aptly applicable to the fact situation on hand and we answer the questions of law framed by this Court against the appellant and in favour of the ITPO and Union of India. 24. The other proceedings involved in this case, if any, pending under the provisions of the P.P. Act before the Estate Officer, the same shall be continued by him. 25.
### Response:
0
### Explanation:
parties where defined positions had been taken, in which case the procedure was held to be an arbitration. This imprecise concept is still being relied on. It is unsatisfactory because some parties to contract deliberately choose expert determination for dispute resolution. The next guideline is the judicial function of an Arbitral Tribunal as opposed to the expertise of the expert.... An Arbitral Tribunal arrives at its decision on the evidence and submissions of the parties and must apply the law or if the parties agree, on other consideration; an expert, unless it is agreed otherwise, makes his own enquiries, applies his own expertise and decides on his own expertwas further held that a clause substantially similar to the clauses referred to in P. Dasaratharama Reddy (supra) was interpreted by the three Judge Bench of this Court in the State of Uttar Pradesh v. Tipper Chand (supra) wherein paras 2 and 3 of the said judgment contain the reasons for holding that the clause in the agreement cannot be construed as an arbitrationpara 18 in P. Dasaratharama Reddy (supra), the case of State of Maharashtra v. Ranjeet Construction [AIR 1986 Bom 76 ] has been discussed wherein a two Judge Bench of this Court interpreted clause 30 of the agreement entered into between the parties, which is almost identical to the clauses under consideration, relying upon the judgment in the Tipper Chand (supra), and held that clause 30 cannot be relied upon by the parties for seeking reference of any dispute to an Arbitrator arising out of theA reading of the above clause in the contract as a conjoint whole, would give us an indication that during the progress of the work or after the completion or the sooner determination thereof of the contract, the Public Health Engineer has been empowered to decide all questions relating to the meaning of the specifications, drawings, instructions hereinbefore mentioned and as to the quality of workmanship or material used on the work or as to any other question, claim, right, matter or thing whatsoever in any way arising out of, or relating to, the contract drawings, specifications, estimates, instructions, orders or those conditions or otherwise concerning the works or the execution or failure to execute the same has been entrusted to the Public Health Engineer and his decision shall be final. In other words, he is nominated only to decide the questions arising in the quality of the work or any other matters enumerated hereinbefore and his decision shall be final and bind the contractor. A clause in the contract cannot be split into two parts so as to consider one part to give rise to difference or dispute and another part relating to execution of work, its workmanship, etc. It is settled now that a clause in the contract must be read as a whole. If the construction suggested by the respondent is given effect then the decision of the Public Health Engineer would become final and it is not even necessary to have it made rule of the court under the Arbitration Act. It [pic]would be hazardous to the claim of a contractor to give such instruction and give power to the Public Health Engineer to make any dispute final and binding on the contractor. A careful reading of the clause in the contract would give us an indication that the Public Health Engineer is empowered to decide all the questions enumerated therein other than any disputes or differences that have arisen between the contractor and the Government. But for Clause 25, there is no other contract to refer any dispute or difference to an arbitrator named orat paragraph 21 of the case of P. Dasaratharama Reddy (supra) the case of K.K. Modi v. K.N. Modi (supra) fell for consideration, wherein this Court interpreted clause 9 of the Memorandum of Understanding that was signed by the two groups of Modi family. The relevant portion from the said judgment with regard to interpretation of Clause 9 of the Memorandum of Understanding between the parties is extractedImplementation will be done in consultation with the financial institutions. For all disputes, clarifications, etc. in respect of implementation of this agreement, the same shall be referred to the Chairman, IFCI or his nominees whose decisions will be final and binding on both thein the decision of P. Dasaratharama Reddy at para 30 referred to the case of Mallikarjun v. Gulbarga University [2004) 1 SCC 372 ] wherein it was held that the decision of the Superintending Engineer of Gulbarga Circle was final, conclusive and binding on all parties to the contract upon all questions relating to the meaning of the specifications, designs etc. whether arising during the progress of the work or after the completion or abandonment thereof in case of dispute arising between the contractor and the Gulbarga University. The case of Punjab State v. Dina Nath [(2007) 5 SCC 28] was also referred supporting the same view in the case of P. Dasaratharama Reddy (supra). In view of the aforesaid decisions and the law laid down by this Court in catena of cases referred to supra which are reiterated in the case of P. Dasaratharama Reddy (supra) we are of the view that the clause 28 in the agreement which is referred to in the case on hand is not an arbitration clause. Therefore, the appointment of an Arbitrator by the nominee of the Chief Justice has been rightly set aside in the impugned judgment by the Division Bench of the Delhi High Court. The law laid down by this Court in the above referred judgments, after interpretation of relevant arbitration clauses in the agreement in those cases, are aptly applicable to the fact situation on hand and we answer the questions of law framed by this Court against the appellant and in favour of the ITPO and Union ofother proceedings involved in this case, if any, pending under the provisions of the P.P. Act before the Estate Officer, the same shall be continued by
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Nasir Ahemed Vs. Assistant Custodian General, Evacuee Property U.P., Lucknow | that the ground based on clause (iii) of section 2(d) of the Act was "very vague" and that the notice was "defective to that extent". It has been stated already that the notice issued under rule 6(1) was based only on that ground and clauses (i) and (ii) of section 2(d) were not mentioned at all in that notice. The Assistant Custodian General, Evacuee Property, U.P. to whom the appellant and his brother preferred a revision found no merit in the applicants case. The Court dismissed in limine the writ petition made by the appellant and his brother Bashir Ahmad on the view that the order of the Assistant Custodian General did not suffer from any error. Bashir Ahmad died after the High Court had disposed of the writ petition, and the appeal before us is by Nasir Ahmad alone.5. It is necessary to state a few more facts. It appears that several years before the present notice under section 7 of the Act was issued, on November 22, 1949 when the Administration of Evacuee Property ordinance, 1949, replaced by the Act in 1950 was in force, a notice was issued to the appellant and his brothers including Bashir Ahmad by Deputy Custodian of Evacuee Property, Deoria, Uttar Pradesh, alleging that they were transferring their movable and immovable ; properties to Pakistan and stating that for this reason they were being considered as evacuees and their property was being treated as evacuee property. The notice invited objections from them, if any, within 30 days. At the instance of District Magistrate, Deoria, a similar notice was issued to the appellant and his brothers by the authority in District Chapra in the State of Bihar where also they had some properties, asking them to show cause why they should not be declared or intending evacuees. The Act had then come into force and this notice was issued under section 19 of the Act. Section 19 provided for issue of notice to a person before declaring him an " intending evacuees". The Act as originally passed contained in clause (e) of section. 2 a definition of "intending evacuee" as meaning a person who had transferred after August 14, 1947 any of his assets to Pakistan. Section 19 was repealed and clause (e) of section 2 was deleted in 1953. On enquiry it was found that there was no reliable evidence to justify a declaration that the appellant and his brothers were intending evacuees and the Deputy Custodian, Chapra, dropped the proceeding on May 24, 1952. On November 29, 1952 the Deputy Custodian, Deoria, also dropped the proceeding started upon the notice issued by him, but on the same day he initiated a proceeding under section 7 of the Act against the appellant and his brother Bashir Ahmad that ended in the declaration challenged in this appeal.The facts stated above clearly show that the notice and the declaration that followed are both invalid. The notice called upon the appellant and his brother to show cause why they should not be declared evacuees under clause (iii) of section 2(d) of the Act and the ground mentioned in the notice was also based on that clause, yet the Assistant Custodian found that they were evacuees under clauses (i) and (ii) as well. The Authorised Deputy Custodian held that the ground given in the notice in support of the case based on clause (iii) was vague and the notice was defective so far as that ground was concerned, but that was the only case the appellant was cal led upon to answer. The foundation of a proceeding under section 7 is a valid notice and an inquiry which travels beyond the bounds of the notice is impermissible and without jurisdiction to that extent. Therefore the declaration that t he appellant was an evacuee under clauses (i) and (ii) of section 2(d) of the Act must be held invalid.6. Under rule 6 the notice under section 7 must be issued in the prescribed form and contain the grounds on which the property is sought to be declared evacuee property. As stated earlier, the notice that was issued in this case merely reproduced the form without mentioning the particulars on which the case against the appellant was based. It was. essential to state the particulars to enable the appellant to answer the case against him. Clearly therefore the notice did not comply with rule 6 and could not provide a foundation for the proceedings that followed.7. What is said in the preceding paragraph makes it plain that the authority concerned did not apply his mind to the relevant material before issuing the notice. The same thing is apparent from another fact. It has been stated that on November 29, 1952 the Deputy Custodian, Deoria, dropped the proceeding seeking to declare the appellant an intending evacuee and that on the same day he directed the initiation of a proceeding under section 7. Section 7 required the Custodian to form an opinion that the property in question is evacuee property within the meaning of the Act before any action under that section is taken. Also, under rule 6 the Custodian has to be satisfied from information in his possession or otherwise that the property is prima facie evacuee property before a notice is issued. On November 29, 1952 no evidence was found to support a declaration that the appellant was an intending evacuee. There is no material on record to suggest that on that very day the authority had before him any evidence to just ify the initiation of a proceeding to declare the appellant an evacuee and his property as evacuee property. The notice under section 7 thus appears to have been issued without any basis. The Assistant Custodian General who found no merit in the revisional application preferred by the appellant overlooked these aspects of the case. We are therefore unable to agree with the High Court that the Assistant Custodian Generals order did not suffer from any error.8. | 1[ds]The facts stated above clearly show that the notice and the declaration that followed are both invalid. The notice called upon the appellant and his brother to show cause why they should not be declared evacuees under clause (iii) of section 2(d) of the Act and the ground mentioned in the notice was also based on that clause, yet the Assistant Custodian found that they were evacuees under clauses (i) and (ii) as well. The Authorised Deputy Custodian held that the ground given in the notice in support of the case based on clause (iii) was vague and the notice was defective so far as that ground was concerned, but that was the only case the appellant was cal led upon to answer. The foundation of a proceeding under section 7 is a valid notice and an inquiry which travels beyond the bounds of the notice is impermissible and without jurisdiction to that extent. Therefore the declaration that t he appellant was an evacuee under clauses (i) and (ii) of section 2(d) of the Act must be heldrule 6 the notice under section 7 must be issued in the prescribed form and contain the grounds on which the property is sought to be declared evacuee property. As stated earlier, the notice that was issued in this case merely reproduced the form without mentioning the particulars on which the case against the appellant was based. It was. essential to state the particulars to enable the appellant to answer the case against him. Clearly therefore the notice did not comply with rule 6 and could not provide a foundation for the proceedings thatis said in the preceding paragraph makes it plain that the authority concerned did not apply his mind to the relevant material before issuing the notice. The same thing is apparent from another fact. It has been stated that on November 29, 1952 the Deputy Custodian, Deoria, dropped the proceeding seeking to declare the appellant an intending evacuee and that on the same day he directed the initiation of a proceeding under section 7. Section 7 required the Custodian to form an opinion that the property in question is evacuee property within the meaning of the Act before any action under that section is taken. Also, under rule 6 the Custodian has to be satisfied from information in his possession or otherwise that the property is prima facie evacuee property before a notice is issued. On November 29, 1952 no evidence was found to support a declaration that the appellant was an intending evacuee. There is no material on record to suggest that on that very day the authority had before him any evidence to just ify the initiation of a proceeding to declare the appellant an evacuee and his property as evacuee property. The notice under section 7 thus appears to have been issued without any basis. The Assistant Custodian General who found no merit in the revisional application preferred by the appellant overlooked these aspects of the case. We are therefore unable to agree with the High Court that the Assistant Custodian Generals order did not suffer from any error. | 1 | 2,057 | 570 | ### 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:
that the ground based on clause (iii) of section 2(d) of the Act was "very vague" and that the notice was "defective to that extent". It has been stated already that the notice issued under rule 6(1) was based only on that ground and clauses (i) and (ii) of section 2(d) were not mentioned at all in that notice. The Assistant Custodian General, Evacuee Property, U.P. to whom the appellant and his brother preferred a revision found no merit in the applicants case. The Court dismissed in limine the writ petition made by the appellant and his brother Bashir Ahmad on the view that the order of the Assistant Custodian General did not suffer from any error. Bashir Ahmad died after the High Court had disposed of the writ petition, and the appeal before us is by Nasir Ahmad alone.5. It is necessary to state a few more facts. It appears that several years before the present notice under section 7 of the Act was issued, on November 22, 1949 when the Administration of Evacuee Property ordinance, 1949, replaced by the Act in 1950 was in force, a notice was issued to the appellant and his brothers including Bashir Ahmad by Deputy Custodian of Evacuee Property, Deoria, Uttar Pradesh, alleging that they were transferring their movable and immovable ; properties to Pakistan and stating that for this reason they were being considered as evacuees and their property was being treated as evacuee property. The notice invited objections from them, if any, within 30 days. At the instance of District Magistrate, Deoria, a similar notice was issued to the appellant and his brothers by the authority in District Chapra in the State of Bihar where also they had some properties, asking them to show cause why they should not be declared or intending evacuees. The Act had then come into force and this notice was issued under section 19 of the Act. Section 19 provided for issue of notice to a person before declaring him an " intending evacuees". The Act as originally passed contained in clause (e) of section. 2 a definition of "intending evacuee" as meaning a person who had transferred after August 14, 1947 any of his assets to Pakistan. Section 19 was repealed and clause (e) of section 2 was deleted in 1953. On enquiry it was found that there was no reliable evidence to justify a declaration that the appellant and his brothers were intending evacuees and the Deputy Custodian, Chapra, dropped the proceeding on May 24, 1952. On November 29, 1952 the Deputy Custodian, Deoria, also dropped the proceeding started upon the notice issued by him, but on the same day he initiated a proceeding under section 7 of the Act against the appellant and his brother Bashir Ahmad that ended in the declaration challenged in this appeal.The facts stated above clearly show that the notice and the declaration that followed are both invalid. The notice called upon the appellant and his brother to show cause why they should not be declared evacuees under clause (iii) of section 2(d) of the Act and the ground mentioned in the notice was also based on that clause, yet the Assistant Custodian found that they were evacuees under clauses (i) and (ii) as well. The Authorised Deputy Custodian held that the ground given in the notice in support of the case based on clause (iii) was vague and the notice was defective so far as that ground was concerned, but that was the only case the appellant was cal led upon to answer. The foundation of a proceeding under section 7 is a valid notice and an inquiry which travels beyond the bounds of the notice is impermissible and without jurisdiction to that extent. Therefore the declaration that t he appellant was an evacuee under clauses (i) and (ii) of section 2(d) of the Act must be held invalid.6. Under rule 6 the notice under section 7 must be issued in the prescribed form and contain the grounds on which the property is sought to be declared evacuee property. As stated earlier, the notice that was issued in this case merely reproduced the form without mentioning the particulars on which the case against the appellant was based. It was. essential to state the particulars to enable the appellant to answer the case against him. Clearly therefore the notice did not comply with rule 6 and could not provide a foundation for the proceedings that followed.7. What is said in the preceding paragraph makes it plain that the authority concerned did not apply his mind to the relevant material before issuing the notice. The same thing is apparent from another fact. It has been stated that on November 29, 1952 the Deputy Custodian, Deoria, dropped the proceeding seeking to declare the appellant an intending evacuee and that on the same day he directed the initiation of a proceeding under section 7. Section 7 required the Custodian to form an opinion that the property in question is evacuee property within the meaning of the Act before any action under that section is taken. Also, under rule 6 the Custodian has to be satisfied from information in his possession or otherwise that the property is prima facie evacuee property before a notice is issued. On November 29, 1952 no evidence was found to support a declaration that the appellant was an intending evacuee. There is no material on record to suggest that on that very day the authority had before him any evidence to just ify the initiation of a proceeding to declare the appellant an evacuee and his property as evacuee property. The notice under section 7 thus appears to have been issued without any basis. The Assistant Custodian General who found no merit in the revisional application preferred by the appellant overlooked these aspects of the case. We are therefore unable to agree with the High Court that the Assistant Custodian Generals order did not suffer from any error.8.
### Response:
1
### Explanation:
The facts stated above clearly show that the notice and the declaration that followed are both invalid. The notice called upon the appellant and his brother to show cause why they should not be declared evacuees under clause (iii) of section 2(d) of the Act and the ground mentioned in the notice was also based on that clause, yet the Assistant Custodian found that they were evacuees under clauses (i) and (ii) as well. The Authorised Deputy Custodian held that the ground given in the notice in support of the case based on clause (iii) was vague and the notice was defective so far as that ground was concerned, but that was the only case the appellant was cal led upon to answer. The foundation of a proceeding under section 7 is a valid notice and an inquiry which travels beyond the bounds of the notice is impermissible and without jurisdiction to that extent. Therefore the declaration that t he appellant was an evacuee under clauses (i) and (ii) of section 2(d) of the Act must be heldrule 6 the notice under section 7 must be issued in the prescribed form and contain the grounds on which the property is sought to be declared evacuee property. As stated earlier, the notice that was issued in this case merely reproduced the form without mentioning the particulars on which the case against the appellant was based. It was. essential to state the particulars to enable the appellant to answer the case against him. Clearly therefore the notice did not comply with rule 6 and could not provide a foundation for the proceedings thatis said in the preceding paragraph makes it plain that the authority concerned did not apply his mind to the relevant material before issuing the notice. The same thing is apparent from another fact. It has been stated that on November 29, 1952 the Deputy Custodian, Deoria, dropped the proceeding seeking to declare the appellant an intending evacuee and that on the same day he directed the initiation of a proceeding under section 7. Section 7 required the Custodian to form an opinion that the property in question is evacuee property within the meaning of the Act before any action under that section is taken. Also, under rule 6 the Custodian has to be satisfied from information in his possession or otherwise that the property is prima facie evacuee property before a notice is issued. On November 29, 1952 no evidence was found to support a declaration that the appellant was an intending evacuee. There is no material on record to suggest that on that very day the authority had before him any evidence to just ify the initiation of a proceeding to declare the appellant an evacuee and his property as evacuee property. The notice under section 7 thus appears to have been issued without any basis. The Assistant Custodian General who found no merit in the revisional application preferred by the appellant overlooked these aspects of the case. We are therefore unable to agree with the High Court that the Assistant Custodian Generals order did not suffer from any error.
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Arun Kumar Sinha Vs. State of West Bengal | a police spy. Your act created a general feeling of fear and insecurity and jeopardised even the tempo of life of the community of the locality and thereby disturbed public order." 3. There is no dispute that the relevant authorities took thereafter all the consequential steps as required by the Act. 4. Mr. Parashar, however, challenged the validity of the order and the petitioners detention thereunder on four grounds. The first was that the subjective satisfaction, which is the foundation for action under the Act, being that of the District Magistrate, the counter-affidavit filed on behalf of the State should have been made by that officer who alone could depose about such satisfaction and not by the Deputy Secretary, Home (Special) Department of the West Bengal Government. There is, in our view, some force in the contention of Mr. Parashar, for, it would be more appropriate that the authority which passes the order and upon whose satisfaction such an order is founded should make the affidavit-in-reply rather than any other authority who has no knowledge of his own and has, therefore, to rely simply on the record of the case. It, however, appears that the State Government has entrusted the entire work of detention cases to a special department to which the records of all the detention cases are sent and therefore finds it more expeditious and convenient to have affidavits filed by the Under Secretary in charge of those cases. Since the subjective satisfaction of the District Magistrate in the instant case is not directly challenged, nothing would seem to turn on the fact that the affidavit-in-reply is not by the District Magistrate but by the Under Secretary. However, in cases where such a challenge is made, it would, in our view, be appropriate and satisfactory that the affidavit should be by the detaining authority itself. 5. The second ground was that the First Information Report was lodged in respect of incidents set out in the grounds for the purpose of initiating a prosecuting against those responsible for them and yet that document did not contain the petitioners name. This ground, however, was not taken by the petitioner in the petition with the result that the respondent State had no opportunity or occasion to deal with it. That being so, it is not possible, in the absence of any materials before us, to deal with such a contention urged for the first time in the course of arguments. 6. The third ground was that there was a delay of thirty-seven days by the Government in considering the representation sent to it by the petitioner. It is not in dispute that the Government received the representation on September 21, 1971, and did not consider and dispose it of until October 28, 1971. Thirty-seven days has thus elapsed between the receipt and the disposal of the representation. This contention also was not raised in the petition and consequently the counter-affidavit of the State Government did not contain any facts explaining the delay. The state Government, however, was directed to file a supplemental reply explaining the delay which the Government has now done. The supplemental affidavit gives two reasons why the representation could not be expeditiously dealt with by the Government. On is that the State Governments employees, including those working in the Home (Special) Department, had resorted to constant demonstrations from the September 12, to the end of November 1971, which considerably impeded the work of the concerned Department. The other is that the during this period there was also a considerable spurt in detention cases both the under the present Act and the West Bengal Prevention of (Violent Activities) Act, 1970. Both these reasons contributed to the delay in the disposal of the cases by the Department. In two decisions of this Court Amulya Chandra Dev v. State of West Bengal ((1972) 2 SCC 902 : 1972 SCC (Cri) 906 ) and Mritunjoy Prumanik v. State of West Bengal ((1972) 2 SCC 586 : 1972 SCC (Cri) 904 ) Mathew, J., rejected a similar explanation and ordered the release of the detenus therein. But that was because he found those explanations unsatisfactory as the representations in those cases were received by Government after the demonstrations had stopped. That is not so in the present case as the petitioners representation was received by Government on September 21, 1971, and considered on October 28, 1971, that is to say, while the demonstrations were still going on. The two cases dealt with by Mathew, J., are thus clearly distinguishable and the reason given there for considering the Governments explanation unsatisfactory cannot rightly apply to the present case. In the circumstances of the present case it is not possible to hold, in the absence of any other material, that the Government was guilty of such inordinate delay as to vitiate the impugned order and the detention thereunder. 7. The last ground was that in any event that two grounds of detention pertained to the problem of law and order and not to public order in relation to which only preventive detention can be directed under the Act. The argument was that the acts complained of in the grounds were acts against specific individuals in respect of which the ordinary laws of the land would be sufficient to cope with and no recourse could have been made to the present Act. A similar point was dealt with in the judgment in Amiya Kumar Karmakar v. State of West Bengal ((1972) 2 SCC 672 : 1973 SCC (Cri) 68 ) just delivered. The reasoning given by us there applies to this case also, and therefore, it is not necessary to repeat it except to say that the object with which the acts attributed to the petitioner and the probable impact they would have on the members of the public residing in the locality were such that they were likely to (and as the grounds assert they in fact did) affect adversely the maintenance of public order. | 0[ds]4. Mr. Parashar, however, challenged the validity of the order and the petitioners detention thereunder on four grounds. The first was that the subjective satisfaction, which is the foundation for action under the Act, being that of the District Magistrate, thet filed on behalf of the State should have been made by that officer who alone could depose about such satisfaction and not by the Deputy Secretary, Home (Special) Department of the West Bengal Government. There is, in our view, some force in the contention of Mr. Parashar, for, it would be more appropriate that the authority which passes the order and upon whose satisfaction such an order is founded should make they rather than any other authority who has no knowledge of his own and has, therefore, to rely simply on the record of the case. It, however, appears that the State Government has entrusted the entire work of detention cases to a special department to which the records of all the detention cases are sent and therefore finds it more expeditious and convenient to have affidavits filed by the Under Secretary in charge of those cases. Since the subjective satisfaction of the District Magistrate in the instant case is not directly challenged, nothing would seem to turn on the fact that they is not by the District Magistrate but by the Under Secretary. However, in cases where such a challenge is made, it would, in our view, be appropriate and satisfactory that the affidavit should be by the detaining authority itself5. The second ground was that the First Information Report was lodged in respect of incidents set out in the grounds for the purpose of initiating a prosecuting against those responsible for them and yet that document did not contain the petitioners. This ground, however, was not taken by the petitioner in the petition with the result that the respondent State had no opportunity or occasion to deal with it. That being so, it is not possible, in the absence of any materials before us, to deal with such a contention urged for the first time in the course of arguments6. The third ground was that there was a delay ofn days by the Government in considering the representation sent to it by the. It is not in dispute that the Government received the representation on September 21, 1971, and did not consider and dispose it of until October 28, 1971.n days has thus elapsed between the receipt and the disposal of the representation. This contention also was not raised in the petition and consequently thet of the State Government did not contain any facts explaining the delay. The state Government, however, was directed to file a supplemental reply explaining the delay which the Government has now done. The supplemental affidavit gives two reasons why the representation could not be expeditiously dealt with by the Government. On is that the State Governments employees, including those working in the Home (Special) Department, had resorted to constant demonstrations from the September 12, to the end of November 1971, which considerably impeded the work of the concerned Department. The other is that the during this period there was also a considerable spurt in detention cases both the under the present Act and the West Bengal Prevention of (Violent Activities) Act, 1970. Both these reasons contributed to the delay in the disposal of the cases by the Department. In two decisions of this Court Amulya Chandra Dev v. State of West Bengal ((1972) 2 SCC 902 : 1972 SCC (Cri) 906 ) and Mritunjoy Prumanik v. State of West Bengal ((1972) 2 SCC 586 : 1972 SCC (Cri) 904 ) Mathew, J., rejected a similar explanation and ordered the release of the detenus therein. But that was because he found those explanations unsatisfactory as the representations in those cases were received by Government after the demonstrations had stopped. That is not so in the present case as the petitioners representation was received by Government on September 21, 1971, and considered on October 28, 1971, that is to say, while the demonstrations were still going on. The two cases dealt with by Mathew, J., are thus clearly distinguishable and the reason given there for considering the Governments explanation unsatisfactory cannot rightly apply to the present case. In the circumstances of the present case it is not possible to hold, in the absence of any other material, that the Government was guilty of such inordinate delay as to vitiate the impugned order and the detention thereunder7. The last ground was that in any event that two grounds of detention pertained to the problem of law and order and not to public order in relation to which only preventive detention can be directed under the Act. The argument was that the acts complained of in the grounds were acts against specific individuals in respect of which the ordinary laws of the land would be sufficient to cope with and no recourse could have been made to the present Act.A similar point was dealt with in the judgment in Amiya Kumar Karmakar v. State of West Bengal ((1972) 2 SCC 672 : 1973 SCC (Cri) 68 ) just delivered. The reasoning given by us there applies to this case also, and therefore, it is not necessary to repeat it except to say that the object with which the acts attributed to the petitioner and the probable impact they would have on the members of the public residing in the locality were such that they were likely to (and as the grounds assert they in fact did) affect adversely the maintenance of public order. | 0 | 1,416 | 1,038 | ### 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:
a police spy. Your act created a general feeling of fear and insecurity and jeopardised even the tempo of life of the community of the locality and thereby disturbed public order." 3. There is no dispute that the relevant authorities took thereafter all the consequential steps as required by the Act. 4. Mr. Parashar, however, challenged the validity of the order and the petitioners detention thereunder on four grounds. The first was that the subjective satisfaction, which is the foundation for action under the Act, being that of the District Magistrate, the counter-affidavit filed on behalf of the State should have been made by that officer who alone could depose about such satisfaction and not by the Deputy Secretary, Home (Special) Department of the West Bengal Government. There is, in our view, some force in the contention of Mr. Parashar, for, it would be more appropriate that the authority which passes the order and upon whose satisfaction such an order is founded should make the affidavit-in-reply rather than any other authority who has no knowledge of his own and has, therefore, to rely simply on the record of the case. It, however, appears that the State Government has entrusted the entire work of detention cases to a special department to which the records of all the detention cases are sent and therefore finds it more expeditious and convenient to have affidavits filed by the Under Secretary in charge of those cases. Since the subjective satisfaction of the District Magistrate in the instant case is not directly challenged, nothing would seem to turn on the fact that the affidavit-in-reply is not by the District Magistrate but by the Under Secretary. However, in cases where such a challenge is made, it would, in our view, be appropriate and satisfactory that the affidavit should be by the detaining authority itself. 5. The second ground was that the First Information Report was lodged in respect of incidents set out in the grounds for the purpose of initiating a prosecuting against those responsible for them and yet that document did not contain the petitioners name. This ground, however, was not taken by the petitioner in the petition with the result that the respondent State had no opportunity or occasion to deal with it. That being so, it is not possible, in the absence of any materials before us, to deal with such a contention urged for the first time in the course of arguments. 6. The third ground was that there was a delay of thirty-seven days by the Government in considering the representation sent to it by the petitioner. It is not in dispute that the Government received the representation on September 21, 1971, and did not consider and dispose it of until October 28, 1971. Thirty-seven days has thus elapsed between the receipt and the disposal of the representation. This contention also was not raised in the petition and consequently the counter-affidavit of the State Government did not contain any facts explaining the delay. The state Government, however, was directed to file a supplemental reply explaining the delay which the Government has now done. The supplemental affidavit gives two reasons why the representation could not be expeditiously dealt with by the Government. On is that the State Governments employees, including those working in the Home (Special) Department, had resorted to constant demonstrations from the September 12, to the end of November 1971, which considerably impeded the work of the concerned Department. The other is that the during this period there was also a considerable spurt in detention cases both the under the present Act and the West Bengal Prevention of (Violent Activities) Act, 1970. Both these reasons contributed to the delay in the disposal of the cases by the Department. In two decisions of this Court Amulya Chandra Dev v. State of West Bengal ((1972) 2 SCC 902 : 1972 SCC (Cri) 906 ) and Mritunjoy Prumanik v. State of West Bengal ((1972) 2 SCC 586 : 1972 SCC (Cri) 904 ) Mathew, J., rejected a similar explanation and ordered the release of the detenus therein. But that was because he found those explanations unsatisfactory as the representations in those cases were received by Government after the demonstrations had stopped. That is not so in the present case as the petitioners representation was received by Government on September 21, 1971, and considered on October 28, 1971, that is to say, while the demonstrations were still going on. The two cases dealt with by Mathew, J., are thus clearly distinguishable and the reason given there for considering the Governments explanation unsatisfactory cannot rightly apply to the present case. In the circumstances of the present case it is not possible to hold, in the absence of any other material, that the Government was guilty of such inordinate delay as to vitiate the impugned order and the detention thereunder. 7. The last ground was that in any event that two grounds of detention pertained to the problem of law and order and not to public order in relation to which only preventive detention can be directed under the Act. The argument was that the acts complained of in the grounds were acts against specific individuals in respect of which the ordinary laws of the land would be sufficient to cope with and no recourse could have been made to the present Act. A similar point was dealt with in the judgment in Amiya Kumar Karmakar v. State of West Bengal ((1972) 2 SCC 672 : 1973 SCC (Cri) 68 ) just delivered. The reasoning given by us there applies to this case also, and therefore, it is not necessary to repeat it except to say that the object with which the acts attributed to the petitioner and the probable impact they would have on the members of the public residing in the locality were such that they were likely to (and as the grounds assert they in fact did) affect adversely the maintenance of public order.
### Response:
0
### Explanation:
4. Mr. Parashar, however, challenged the validity of the order and the petitioners detention thereunder on four grounds. The first was that the subjective satisfaction, which is the foundation for action under the Act, being that of the District Magistrate, thet filed on behalf of the State should have been made by that officer who alone could depose about such satisfaction and not by the Deputy Secretary, Home (Special) Department of the West Bengal Government. There is, in our view, some force in the contention of Mr. Parashar, for, it would be more appropriate that the authority which passes the order and upon whose satisfaction such an order is founded should make they rather than any other authority who has no knowledge of his own and has, therefore, to rely simply on the record of the case. It, however, appears that the State Government has entrusted the entire work of detention cases to a special department to which the records of all the detention cases are sent and therefore finds it more expeditious and convenient to have affidavits filed by the Under Secretary in charge of those cases. Since the subjective satisfaction of the District Magistrate in the instant case is not directly challenged, nothing would seem to turn on the fact that they is not by the District Magistrate but by the Under Secretary. However, in cases where such a challenge is made, it would, in our view, be appropriate and satisfactory that the affidavit should be by the detaining authority itself5. The second ground was that the First Information Report was lodged in respect of incidents set out in the grounds for the purpose of initiating a prosecuting against those responsible for them and yet that document did not contain the petitioners. This ground, however, was not taken by the petitioner in the petition with the result that the respondent State had no opportunity or occasion to deal with it. That being so, it is not possible, in the absence of any materials before us, to deal with such a contention urged for the first time in the course of arguments6. The third ground was that there was a delay ofn days by the Government in considering the representation sent to it by the. It is not in dispute that the Government received the representation on September 21, 1971, and did not consider and dispose it of until October 28, 1971.n days has thus elapsed between the receipt and the disposal of the representation. This contention also was not raised in the petition and consequently thet of the State Government did not contain any facts explaining the delay. The state Government, however, was directed to file a supplemental reply explaining the delay which the Government has now done. The supplemental affidavit gives two reasons why the representation could not be expeditiously dealt with by the Government. On is that the State Governments employees, including those working in the Home (Special) Department, had resorted to constant demonstrations from the September 12, to the end of November 1971, which considerably impeded the work of the concerned Department. The other is that the during this period there was also a considerable spurt in detention cases both the under the present Act and the West Bengal Prevention of (Violent Activities) Act, 1970. Both these reasons contributed to the delay in the disposal of the cases by the Department. In two decisions of this Court Amulya Chandra Dev v. State of West Bengal ((1972) 2 SCC 902 : 1972 SCC (Cri) 906 ) and Mritunjoy Prumanik v. State of West Bengal ((1972) 2 SCC 586 : 1972 SCC (Cri) 904 ) Mathew, J., rejected a similar explanation and ordered the release of the detenus therein. But that was because he found those explanations unsatisfactory as the representations in those cases were received by Government after the demonstrations had stopped. That is not so in the present case as the petitioners representation was received by Government on September 21, 1971, and considered on October 28, 1971, that is to say, while the demonstrations were still going on. The two cases dealt with by Mathew, J., are thus clearly distinguishable and the reason given there for considering the Governments explanation unsatisfactory cannot rightly apply to the present case. In the circumstances of the present case it is not possible to hold, in the absence of any other material, that the Government was guilty of such inordinate delay as to vitiate the impugned order and the detention thereunder7. The last ground was that in any event that two grounds of detention pertained to the problem of law and order and not to public order in relation to which only preventive detention can be directed under the Act. The argument was that the acts complained of in the grounds were acts against specific individuals in respect of which the ordinary laws of the land would be sufficient to cope with and no recourse could have been made to the present Act.A similar point was dealt with in the judgment in Amiya Kumar Karmakar v. State of West Bengal ((1972) 2 SCC 672 : 1973 SCC (Cri) 68 ) just delivered. The reasoning given by us there applies to this case also, and therefore, it is not necessary to repeat it except to say that the object with which the acts attributed to the petitioner and the probable impact they would have on the members of the public residing in the locality were such that they were likely to (and as the grounds assert they in fact did) affect adversely the maintenance of public order.
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Alok Knit Exports Limited Vs. The Deputy Commissioner of Income Tax and Ors | out of any previous year is undoubtedly the liability to be taken care of by the new company. Notwithstanding this conclusion and being aware that Niraj Realtors had merged into petitioner and for the Assessment Year 2011-2012 respondent no.1 having issued notice under Section 148 of the Act to petitioner for the dues of Niraj Realtors, still respondent no.1 persisted with issuing the notice for the Assessment Year 2012-2013 under Section 148 of the Act to Niraj Realtors, a non-existent company. 5. Mr. Mohanty appearing for respondents submitted that it was a human error which could be corrected under Section 292B of the Act. According to Mr. Mohanty human errors and mistakes cannot and should not nullify proceedings which were otherwise valid and no prejudice has been caused. Mr. Mohanty, relying upon the judgment of the Delhi High Court in Sky Light Hospitality LLP V/s. Assistant Commissioner of Income Tax (2018) 405 ITR 296 (Delhi) , submitted that that was the effect and mandate of Section 292B of the Act. Mr. Mohanty also relied upon the order passed by the Apex Court when Sky Light Hospitality (supra) was escalated to the Apex Court (Sky Light Hospitality LLP V/s. Assistant Commissioner of Income Tax (2018) 92 taxmann.com 93 (SC) ). These do not help Mr. Mohantys case. This cannot be a general preposition as the Apex Court has expressly stated In the peculiar facts of this case, we are convinced that wrong name given in the notice was merely a clerical error which could be corrected under Section 292B of the IT Act (emphasis supplied). 6. The Apex Court in its recent judgment on this subject in Principal Commissioner of Income Tax V/s. Maruti Suzuki India Ltd. (2019) 416 ITR 613 (SC) considered the judgment of Sky Ligh Hospitality (supra) of the Apex Court and said that the Apex Court has expressly mentioned that in the peculiar facts of that case wrong name given in the notice was merely a clerical error. The Apex Court in Maruti Suzuki India Ltd. (supra) has also observed that what weighed in the dismissal of the Special Leave Petition were the peculiar facts of that case. The Apex Court has reiterated the settled position that the basis on which jurisdiction is invoked is under Section 148 of the Act and when such jurisdiction was invoked on the basis of something which was fundamentally at odds with the legal principle that the amalgamating entity ceases to exist upon the approved scheme of amalgamation, the notice is bad in law. The Apex Court has held as under : In the present case, despite the fact that the assessing officer was informed of the amalgamating company having ceased to exist as a result of the approved scheme of amalgamation, the jurisdictional notice was issued only in its name. The basis on which jurisdiction was invoked was fundamentally at odds with the legal principle that the amalgamating entity ceases to exist upon the approved scheme of amalgamation. Participation in the proceedings by the appellant in the circumstances cannot operate as an estoppel against law. This position now holds the field in view of the judgment of a coordinate Bench of two learned judges which dismissed the appeal of the Revenue in Spice Enfotainment on 2 November 2017. The decision in Spice Enfotainment has been followed in the case of the respondent while dismissing the Special Leave Petition for AY 2011-2012. In doing so, this Court has relied on the decision in Spice Enfotainment. 7. This quotation squarely applies to this case at hand. In the case at hand as well, the indisputable fact is respondent no.1 has invoked jurisdiction by issuing notice under Section 148 of the Act to an entity that had ceased to exist. This is notwithstanding the fact that respondent no.1 was aware that Niraj Realtors had ceased to exist. Respondent no.1, as noted earlier, we say was aware because the notice under Section 148 of the Act was issued for the Assessment Year 2011-2012 in the name of petitioner for re-opening the assessment of Niraj Realtors. Infact even the reasoning dated 6th July 2018 for re-opening of the Assessment Year 2011-2012 starts with the following : The M/s. Niraj Realtors & Shares Pvt. Ltd. (PAN : AABPS7071E) now merged with M/s. Alok Knit Exports Private Limited (PAN : AACCA8337K) is an Assessee of this charge. 8. The stand now taken in the affidavit in reply and submissions of Mr. Mohanty is nothing but an afterthought by respondent after having committed a fundamental error. We would have expected respondent no.1 to have atleast applied his mind and looked for documents which were already on file to see whether Niraj Realtors existed before issuing notice under Section 148 of the Act. Respondents records would have indicated that Niraj Realtors ceased to exist and his predecessor/colleague has issued notice for the Assessment Year 2011-2012 alongwith the reasoning in the name of petitioner. 9. Therefore, the stand of respondent today that it was an error which could be corrected under Section 292B of the Act is not acceptable to this Court. Mr. Mohanty submitted that when respondent filled up the form for recording the reasons and initiating proceedings under Section 148 of the Act and for obtaining the approval on 29th March 2019, he has mentioned in the form in the column name and address of the assessee as M/s. Niraj Realtors and Shares Pvt. Ltd. now merged in and known as M/s. Alok Knit Exports Pvt. Ltd. In our view, that itself should have made respondent no.1 realise that when a company is merging into another company that merging company ceases to exist. Infact the Principal Commissioner of Income Tax, who is supposed to have approved the initiating of proceedings under Section 148 of the Act, also should have brought to the notice of or guided respondent no.1 that the notice ought to be issued in the name of petitioner and not Niraj Realtors which ceased to exist. | 1[ds]These do not help Mr. Mohantys case. This cannot be a general preposition as the Apex Court has expressly stated In the peculiar facts of this case, we are convinced that wrong name given in the notice was merely a clerical error which could be corrected under Section 292B of the IT Act (emphasis supplied).6. The Apex Court in its recent judgment on this subject in Principal Commissioner of Income Tax V/s. Maruti Suzuki India Ltd. (2019) 416 ITR 613 (SC) considered the judgment of Sky Ligh Hospitality (supra) of the Apex Court and said that the Apex Court has expressly mentioned that in the peculiar facts of that case wrong name given in the notice was merely a clerical error. The Apex Court in Maruti Suzuki India Ltd. (supra) has also observed that what weighed in the dismissal of the Special Leave Petition were the peculiar facts of that case. The Apex Court has reiterated the settled position that the basis on which jurisdiction is invoked is under Section 148 of the Act and when such jurisdiction was invoked on the basis of something which was fundamentally at odds with the legal principle that the amalgamating entity ceases to exist upon the approved scheme of amalgamation, the notice is bad in law. The Apex Court has held as under :In the present case, despite the fact that the assessing officer was informed of the amalgamating company having ceased to exist as a result of the approved scheme of amalgamation, the jurisdictional notice was issued only in its name. The basis on which jurisdiction was invoked was fundamentally at odds with the legal principle that the amalgamating entity ceases to exist upon the approved scheme of amalgamation. Participation in the proceedings by the appellant in the circumstances cannot operate as an estoppel against law. This position now holds the field in view of the judgment of a coordinate Bench of two learned judges which dismissed the appeal of the Revenue in Spice Enfotainment on 2 November 2017. The decision in Spice Enfotainment has been followed in the case of the respondent while dismissing the Special Leave Petition for AY 2011-2012. In doing so, this Court has relied on the decision in Spice Enfotainment.7. This quotation squarely applies to this case at hand. In the case at hand as well, the indisputable fact is respondent no.1 has invoked jurisdiction by issuing notice under Section 148 of the Act to an entity that had ceased to exist. This is notwithstanding the fact that respondent no.1 was aware that Niraj Realtors had ceased to exist. Respondent no.1, as noted earlier, we say was aware because the notice under Section 148 of the Act was issued for the Assessment Year 2011-2012 in the name of petitioner for re-opening the assessment of Niraj Realtors.8. The stand now taken in the affidavit in reply and submissions of Mr. Mohanty is nothing but an afterthought by respondent after having committed a fundamental error. We would have expected respondent no.1 to have atleast applied his mind and looked for documents which were already on file to see whether Niraj Realtors existed before issuing notice under Section 148 of the Act. Respondents records would have indicated that Niraj Realtors ceased to exist and his predecessor/colleague has issued notice for the Assessment Year 2011-2012 alongwith the reasoning in the name of petitioner.9. Therefore, the stand of respondent today that it was an error which could be corrected under Section 292B of the Act is not acceptable to this Court.In our view, that itself should have made respondent no.1 realise that when a company is merging into another company that merging company ceases to exist. Infact the Principal Commissioner of Income Tax, who is supposed to have approved the initiating of proceedings under Section 148 of the Act, also should have brought to the notice of or guided respondent no.1 that the notice ought to be issued in the name of petitioner and not Niraj Realtors which ceased to exist. | 1 | 2,209 | 720 | ### Instruction:
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out of any previous year is undoubtedly the liability to be taken care of by the new company. Notwithstanding this conclusion and being aware that Niraj Realtors had merged into petitioner and for the Assessment Year 2011-2012 respondent no.1 having issued notice under Section 148 of the Act to petitioner for the dues of Niraj Realtors, still respondent no.1 persisted with issuing the notice for the Assessment Year 2012-2013 under Section 148 of the Act to Niraj Realtors, a non-existent company. 5. Mr. Mohanty appearing for respondents submitted that it was a human error which could be corrected under Section 292B of the Act. According to Mr. Mohanty human errors and mistakes cannot and should not nullify proceedings which were otherwise valid and no prejudice has been caused. Mr. Mohanty, relying upon the judgment of the Delhi High Court in Sky Light Hospitality LLP V/s. Assistant Commissioner of Income Tax (2018) 405 ITR 296 (Delhi) , submitted that that was the effect and mandate of Section 292B of the Act. Mr. Mohanty also relied upon the order passed by the Apex Court when Sky Light Hospitality (supra) was escalated to the Apex Court (Sky Light Hospitality LLP V/s. Assistant Commissioner of Income Tax (2018) 92 taxmann.com 93 (SC) ). These do not help Mr. Mohantys case. This cannot be a general preposition as the Apex Court has expressly stated In the peculiar facts of this case, we are convinced that wrong name given in the notice was merely a clerical error which could be corrected under Section 292B of the IT Act (emphasis supplied). 6. The Apex Court in its recent judgment on this subject in Principal Commissioner of Income Tax V/s. Maruti Suzuki India Ltd. (2019) 416 ITR 613 (SC) considered the judgment of Sky Ligh Hospitality (supra) of the Apex Court and said that the Apex Court has expressly mentioned that in the peculiar facts of that case wrong name given in the notice was merely a clerical error. The Apex Court in Maruti Suzuki India Ltd. (supra) has also observed that what weighed in the dismissal of the Special Leave Petition were the peculiar facts of that case. The Apex Court has reiterated the settled position that the basis on which jurisdiction is invoked is under Section 148 of the Act and when such jurisdiction was invoked on the basis of something which was fundamentally at odds with the legal principle that the amalgamating entity ceases to exist upon the approved scheme of amalgamation, the notice is bad in law. The Apex Court has held as under : In the present case, despite the fact that the assessing officer was informed of the amalgamating company having ceased to exist as a result of the approved scheme of amalgamation, the jurisdictional notice was issued only in its name. The basis on which jurisdiction was invoked was fundamentally at odds with the legal principle that the amalgamating entity ceases to exist upon the approved scheme of amalgamation. Participation in the proceedings by the appellant in the circumstances cannot operate as an estoppel against law. This position now holds the field in view of the judgment of a coordinate Bench of two learned judges which dismissed the appeal of the Revenue in Spice Enfotainment on 2 November 2017. The decision in Spice Enfotainment has been followed in the case of the respondent while dismissing the Special Leave Petition for AY 2011-2012. In doing so, this Court has relied on the decision in Spice Enfotainment. 7. This quotation squarely applies to this case at hand. In the case at hand as well, the indisputable fact is respondent no.1 has invoked jurisdiction by issuing notice under Section 148 of the Act to an entity that had ceased to exist. This is notwithstanding the fact that respondent no.1 was aware that Niraj Realtors had ceased to exist. Respondent no.1, as noted earlier, we say was aware because the notice under Section 148 of the Act was issued for the Assessment Year 2011-2012 in the name of petitioner for re-opening the assessment of Niraj Realtors. Infact even the reasoning dated 6th July 2018 for re-opening of the Assessment Year 2011-2012 starts with the following : The M/s. Niraj Realtors & Shares Pvt. Ltd. (PAN : AABPS7071E) now merged with M/s. Alok Knit Exports Private Limited (PAN : AACCA8337K) is an Assessee of this charge. 8. The stand now taken in the affidavit in reply and submissions of Mr. Mohanty is nothing but an afterthought by respondent after having committed a fundamental error. We would have expected respondent no.1 to have atleast applied his mind and looked for documents which were already on file to see whether Niraj Realtors existed before issuing notice under Section 148 of the Act. Respondents records would have indicated that Niraj Realtors ceased to exist and his predecessor/colleague has issued notice for the Assessment Year 2011-2012 alongwith the reasoning in the name of petitioner. 9. Therefore, the stand of respondent today that it was an error which could be corrected under Section 292B of the Act is not acceptable to this Court. Mr. Mohanty submitted that when respondent filled up the form for recording the reasons and initiating proceedings under Section 148 of the Act and for obtaining the approval on 29th March 2019, he has mentioned in the form in the column name and address of the assessee as M/s. Niraj Realtors and Shares Pvt. Ltd. now merged in and known as M/s. Alok Knit Exports Pvt. Ltd. In our view, that itself should have made respondent no.1 realise that when a company is merging into another company that merging company ceases to exist. Infact the Principal Commissioner of Income Tax, who is supposed to have approved the initiating of proceedings under Section 148 of the Act, also should have brought to the notice of or guided respondent no.1 that the notice ought to be issued in the name of petitioner and not Niraj Realtors which ceased to exist.
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These do not help Mr. Mohantys case. This cannot be a general preposition as the Apex Court has expressly stated In the peculiar facts of this case, we are convinced that wrong name given in the notice was merely a clerical error which could be corrected under Section 292B of the IT Act (emphasis supplied).6. The Apex Court in its recent judgment on this subject in Principal Commissioner of Income Tax V/s. Maruti Suzuki India Ltd. (2019) 416 ITR 613 (SC) considered the judgment of Sky Ligh Hospitality (supra) of the Apex Court and said that the Apex Court has expressly mentioned that in the peculiar facts of that case wrong name given in the notice was merely a clerical error. The Apex Court in Maruti Suzuki India Ltd. (supra) has also observed that what weighed in the dismissal of the Special Leave Petition were the peculiar facts of that case. The Apex Court has reiterated the settled position that the basis on which jurisdiction is invoked is under Section 148 of the Act and when such jurisdiction was invoked on the basis of something which was fundamentally at odds with the legal principle that the amalgamating entity ceases to exist upon the approved scheme of amalgamation, the notice is bad in law. The Apex Court has held as under :In the present case, despite the fact that the assessing officer was informed of the amalgamating company having ceased to exist as a result of the approved scheme of amalgamation, the jurisdictional notice was issued only in its name. The basis on which jurisdiction was invoked was fundamentally at odds with the legal principle that the amalgamating entity ceases to exist upon the approved scheme of amalgamation. Participation in the proceedings by the appellant in the circumstances cannot operate as an estoppel against law. This position now holds the field in view of the judgment of a coordinate Bench of two learned judges which dismissed the appeal of the Revenue in Spice Enfotainment on 2 November 2017. The decision in Spice Enfotainment has been followed in the case of the respondent while dismissing the Special Leave Petition for AY 2011-2012. In doing so, this Court has relied on the decision in Spice Enfotainment.7. This quotation squarely applies to this case at hand. In the case at hand as well, the indisputable fact is respondent no.1 has invoked jurisdiction by issuing notice under Section 148 of the Act to an entity that had ceased to exist. This is notwithstanding the fact that respondent no.1 was aware that Niraj Realtors had ceased to exist. Respondent no.1, as noted earlier, we say was aware because the notice under Section 148 of the Act was issued for the Assessment Year 2011-2012 in the name of petitioner for re-opening the assessment of Niraj Realtors.8. The stand now taken in the affidavit in reply and submissions of Mr. Mohanty is nothing but an afterthought by respondent after having committed a fundamental error. We would have expected respondent no.1 to have atleast applied his mind and looked for documents which were already on file to see whether Niraj Realtors existed before issuing notice under Section 148 of the Act. Respondents records would have indicated that Niraj Realtors ceased to exist and his predecessor/colleague has issued notice for the Assessment Year 2011-2012 alongwith the reasoning in the name of petitioner.9. Therefore, the stand of respondent today that it was an error which could be corrected under Section 292B of the Act is not acceptable to this Court.In our view, that itself should have made respondent no.1 realise that when a company is merging into another company that merging company ceases to exist. Infact the Principal Commissioner of Income Tax, who is supposed to have approved the initiating of proceedings under Section 148 of the Act, also should have brought to the notice of or guided respondent no.1 that the notice ought to be issued in the name of petitioner and not Niraj Realtors which ceased to exist.
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MUKESH KUMAR & ANR Vs. THE UNION OF INDIA & ORS | the benefit of compassionate appointment, only to the spouse and children of the first marriage and to deny it to the spouse of a subsequent marriage and the children. We are here concerned with the exclusion of children born from a second marriage. By excluding a class of beneficiaries who have been deemed legitimate by the operation of law, the condition imposed is disproportionate to the object sought to be achieved. Having regard to the purpose and object of a scheme of compassionate appointment, once the law has treated such children as legitimate, it would be impermissible to exclude them from being considered for compassionate appointment. Children do not choose their parents. To deny compassionate appointment though the law treats a child of a void marriage as legitimate is deeply offensive to their dignity and is offensive to the constitutional guarantee against discrimination. 18. … The exclusion of one class of legitimate children from seeking compassionate appointment merely on the ground that the mother of the applicant was a plural wife of the deceased employee would fail to meet the test of a reasonable nexus with the object sought to be achieved. It would be offensive to and defeat the whole object of ensuring the dignity of the family of a deceased employee who has died in harness. It brings about unconstitutional discrimination between one class of legitimate beneficiaries — legitimate children. 7. This Court held that the scheme and the rules of compassionate appointment cannot violate the mandate of Article 14 of the Constitution. Once Section 16 of the Hindu Marriage Act regards a child born from a marriage entered into while the earlier marriage is subsisting to be legitimate, it would violate Article 14 if the policy or rule excludes such a child from seeking the benefit of compassionate appointment. The circular creates two categories between one class, and it has no nexus to the objects sought to be achieved. Once the law has deemed them legitimate, it would be impermissible to exclude them from being considered under the policy. Exclusion of one class of legitimate children would fail to meet the test of nexus with the object, and it would defeat the purpose of ensuring the dignity of the family of the deceased employee. This judgment has now been followed by a number of High Courts as well [See, K. Santhosha v. Karnataka Power Transmission Corp Ltd. 2022(1) Kant LJ 154 (Decided on 24.06.2021 by The High Court of Karnataka); Yuvraj DajeeKhadake v. Union of India: 2019 SCC OnLine Bom 299 (Decided on 21.02.2019 by The High Court of Bombay); Union of India v Rohit Chand 2020 SCC OnLine Del 157. (Decided on 24.01.2020 by The High Court of Delhi)]. 8. Apart from the discrimination ensuing from treating equals unequally, which is writ large as demonstrated in the judgment of this Court referred to above, there is also discrimination on the ground of descent, which is expressly prohibited under Article 16(2). In V. Sivamurthy v. State of A.P. , this Court observed that appointments made only on the basis of descent is impermissible. However, compassionate appointments are a well-recognized exception to the general rule if they are carved out in the interest of justice to meet public policy considerations [Director General of Posts v. K. Chandrashekar Rao, (2013) 3 SCC 310 (at para 18); Further, constitutionality of compassionate appointments was upheld in State of Haryana v. Ankur Gupta (2003) 7 SCC 704 (at para 6); Yogender Pal Singh v. Union of India (1987) 1 SCC 631 (at para 17)]. It lends justification only that far and no further. 9. While compassionate appointment is an exception to the constitutional guarantee under Article 16, a policy for compassionate appointment must be consistent with the mandate of Articles 14 and 16. That is to say, a policy for compassionate appointment, which has the force of law, must not discriminate on any of the grounds mentioned in Article 16(2), including that of descent. In this regard, descent must be understood to encompass the familial origins of a person [See, Gazula Dasaratha Rama Rao v. State of Andhra Pradesh and Ors. (1961) 2 SCR 931 ]. Familial origins include the validity of the marriage of the parents of a claimant of compassionate appointment and the claimants legitimacy as their child. The policy cannot discriminate against a person only on the ground of descent by classifying children of the deceased employee as legitimate and illegitimate and recognizing only the right of legitimate descendant. Apart from the fact that strict scrutiny would reveal that the classification is suspect, as demonstrated by this Court in V.R. Tripathi, it will instantly fall foul of the constitutional prohibition of discrimination on the ground of descent. Such a policy is violative of Article 16(2). 10. We note with approval the decision of the Delhi High Court in Union of India v. Pankaj Kumar Sharma (Union of India v. Pankaj Kumar Sharma MANU/DE/3959/2014, WP(C) No.9008/2014 dt 19.04.2014), to which one of us (Justice S. Ravindra Bhat) was a party, which held that descent cannot be a ground for denying employment under the scheme of compassionate appointments. Speaking through Sanghi J., the Court held: 22. The Court is of opinion that - apart from being textually sound - understanding descent in terms of prohibiting discrimination against a person on the basis of legitimacy, or on the basis of his mothers status as a first or second wife, fits within the principles underlying Article 16(2). Not only is ones descent, in this sense, entirely beyond ones control (and therefore, ought not to become a ground of State-sanctioned disadvantage), but it is also an established fact that children of second wives, whether counted as illegitimate or legitimate, have often suffered severe social disadvantage. Another significant observation here is that at the entry level - legitimacy is and cannot be a ground for denial of public employment. For these reasons, this Court is of the opinion that the Petitioners regulation violates Article 16(2). | 1[ds]Having considered the matter, we have agreed with the counsel for the appellant that the issue is covered by the judgment of this Court in Union of India v. V.R. Tripathi (Union of India v. V.R. Tripathi, (2019) 14 SCC 646) . We have allowed the appeal on this ground. We have also held that such a denial is discriminatory, being only on the ground of descent under Article 16(2) of the Constitution of India.6. It is true that the matter is no more res integra. This Court in V.R. Tripathi considered the very same policy and circular that arise for the consideration in the present case. The judgment covers the issue, as is evident from the following passages:14. The real issue in the present case, however, is whether the condition which has been imposed by the circular of the Railway Board under which compassionate appointment cannot be granted to the children born from a second marriage of a deceased employee (except where the marriage was permitted by the administration taking into account personal law, etc.) accords with basic notions of fairness and equal treatment, so as to be consistent with Article 14 of the Constitution….16. The issue essentially is whether it is open to an employer, who is amenable to Part III of the Constitution to deny the benefit of compassionate appointment which is available to other legitimate children. Undoubtedly, while designing a policy of compassionate appointment, the State can prescribe the terms on which it can be granted. However, it is not open to the State, while making the scheme or rules, to lay down a condition which is inconsistent with Article 14 of the Constitution. The purpose of compassionate appointment is to prevent destitution and penury in the family of a deceased employee. The effect of the circular is that irrespective of the destitution which a child born from a second marriage of a deceased employee may face, compassionate appointment is to be refused unless the second marriage was contracted with the permission of the administration. Once Section 16 of the Hindu Marriage Act, 1955 regards a child born from a marriage entered into while the earlier marriage is subsisting to be legitimate, it would not be open to the State, consistent with Article 14 to exclude such a child from seeking the benefit of compassionate appointment. Such a condition of exclusion is arbitrary and ultra vires.17. Even if the narrow classification test is adopted, the circular of the Railway Board creates two categories between one class of legitimate children. Though the law has regarded a child born from a second marriage as legitimate, a child born from the first marriage of a deceased employee is alone made entitled to the benefit of compassionate appointment. The salutary purpose underlying the grant of compassionate appointment, which is to prevent destitution and penury in the family of a deceased employee requires that any stipulation or condition which is imposed must have or bear a reasonable nexus to the object which is sought to be achieved. The learned Additional Solicitor General has urged that it is open to the State, as part of its policy of discouraging bigamy to restrict the benefit of compassionate appointment, only to the spouse and children of the first marriage and to deny it to the spouse of a subsequent marriage and the children. We are here concerned with the exclusion of children born from a second marriage. By excluding a class of beneficiaries who have been deemed legitimate by the operation of law, the condition imposed is disproportionate to the object sought to be achieved. Having regard to the purpose and object of a scheme of compassionate appointment, once the law has treated such children as legitimate, it would be impermissible to exclude them from being considered for compassionate appointment. Children do not choose their parents. To deny compassionate appointment though the law treats a child of a void marriage as legitimate is deeply offensive to their dignity and is offensive to the constitutional guarantee against discrimination.18. … The exclusion of one class of legitimate children from seeking compassionate appointment merely on the ground that the mother of the applicant was a plural wife of the deceased employee would fail to meet the test of a reasonable nexus with the object sought to be achieved. It would be offensive to and defeat the whole object of ensuring the dignity of the family of a deceased employee who has died in harness. It brings about unconstitutional discrimination between one class of legitimate beneficiaries — legitimate children.7. This Court held that the scheme and the rules of compassionate appointment cannot violate the mandate of Article 14 of the Constitution. Once Section 16 of the Hindu Marriage Act regards a child born from a marriage entered into while the earlier marriage is subsisting to be legitimate, it would violate Article 14 if the policy or rule excludes such a child from seeking the benefit of compassionate appointment. The circular creates two categories between one class, and it has no nexus to the objects sought to be achieved. Once the law has deemed them legitimate, it would be impermissible to exclude them from being considered under the policy. Exclusion of one class of legitimate children would fail to meet the test of nexus with the object, and it would defeat the purpose of ensuring the dignity of the family of the deceased employee. This judgment has now been followed by a number of High Courts as well [See, K. Santhosha v. Karnataka Power Transmission Corp Ltd. 2022(1) Kant LJ 154 (Decided on 24.06.2021 by The High Court of Karnataka); Yuvraj DajeeKhadake v. Union of India: 2019 SCC OnLine Bom 299 (Decided on 21.02.2019 by The High Court of Bombay); Union of India v Rohit Chand 2020 SCC OnLine Del 157. (Decided on 24.01.2020 by The High Court of Delhi)].8. Apart from the discrimination ensuing from treating equals unequally, which is writ large as demonstrated in the judgment of this Court referred to above, there is also discrimination on the ground of descent, which is expressly prohibited under Article 16(2). In V. Sivamurthy v. State of A.P. , this Court observed that appointments made only on the basis of descent is impermissible. However, compassionate appointments are a well-recognized exception to the general rule if they are carved out in the interest of justice to meet public policy considerations [Director General of Posts v. K. Chandrashekar Rao, (2013) 3 SCC 310 (at para 18); Further, constitutionality of compassionate appointments was upheld in State of Haryana v. Ankur Gupta (2003) 7 SCC 704 (at para 6); Yogender Pal Singh v. Union of India (1987) 1 SCC 631 (at para 17)]. It lends justification only that far and no further.Apart from the fact that strict scrutiny would reveal that the classification is suspect, as demonstrated by this Court in V.R. Tripathi, it will instantly fall foul of the constitutional prohibition of discrimination on the ground of descent. Such a policy is violative of Article 16(2).10. We note with approval the decision of the Delhi High Court in Union of India v. Pankaj Kumar Sharma (Union of India v. Pankaj Kumar Sharma MANU/DE/3959/2014, WP(C) No.9008/2014 dt 19.04.2014),to which one of us (Justice S. Ravindra Bhat) was a party, which held that descent cannot be a ground for denying employment under the scheme of compassionate appointments. Speaking through Sanghi J., the Court held:22. The Court is of opinion that - apart from being textually sound - understanding descent in terms of prohibiting discrimination against a person on the basis of legitimacy, or on the basis of his mothers status as a first or second wife, fits within the principles underlying Article 16(2). Not only is ones descent, in this sense, entirely beyond ones control (and therefore, ought not to become a ground of State-sanctioned disadvantage), but it is also an established fact that children of second wives, whether counted as illegitimate or legitimate, have often suffered severe social disadvantage. Another significant observation here is that at the entry level - legitimacy is and cannot be a ground for denial of public employment. For these reasons, this Court is of the opinion that the Petitioners regulation violates Article 16(2). | 1 | 2,300 | 1,546 | ### 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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the benefit of compassionate appointment, only to the spouse and children of the first marriage and to deny it to the spouse of a subsequent marriage and the children. We are here concerned with the exclusion of children born from a second marriage. By excluding a class of beneficiaries who have been deemed legitimate by the operation of law, the condition imposed is disproportionate to the object sought to be achieved. Having regard to the purpose and object of a scheme of compassionate appointment, once the law has treated such children as legitimate, it would be impermissible to exclude them from being considered for compassionate appointment. Children do not choose their parents. To deny compassionate appointment though the law treats a child of a void marriage as legitimate is deeply offensive to their dignity and is offensive to the constitutional guarantee against discrimination. 18. … The exclusion of one class of legitimate children from seeking compassionate appointment merely on the ground that the mother of the applicant was a plural wife of the deceased employee would fail to meet the test of a reasonable nexus with the object sought to be achieved. It would be offensive to and defeat the whole object of ensuring the dignity of the family of a deceased employee who has died in harness. It brings about unconstitutional discrimination between one class of legitimate beneficiaries — legitimate children. 7. This Court held that the scheme and the rules of compassionate appointment cannot violate the mandate of Article 14 of the Constitution. Once Section 16 of the Hindu Marriage Act regards a child born from a marriage entered into while the earlier marriage is subsisting to be legitimate, it would violate Article 14 if the policy or rule excludes such a child from seeking the benefit of compassionate appointment. The circular creates two categories between one class, and it has no nexus to the objects sought to be achieved. Once the law has deemed them legitimate, it would be impermissible to exclude them from being considered under the policy. Exclusion of one class of legitimate children would fail to meet the test of nexus with the object, and it would defeat the purpose of ensuring the dignity of the family of the deceased employee. This judgment has now been followed by a number of High Courts as well [See, K. Santhosha v. Karnataka Power Transmission Corp Ltd. 2022(1) Kant LJ 154 (Decided on 24.06.2021 by The High Court of Karnataka); Yuvraj DajeeKhadake v. Union of India: 2019 SCC OnLine Bom 299 (Decided on 21.02.2019 by The High Court of Bombay); Union of India v Rohit Chand 2020 SCC OnLine Del 157. (Decided on 24.01.2020 by The High Court of Delhi)]. 8. Apart from the discrimination ensuing from treating equals unequally, which is writ large as demonstrated in the judgment of this Court referred to above, there is also discrimination on the ground of descent, which is expressly prohibited under Article 16(2). In V. Sivamurthy v. State of A.P. , this Court observed that appointments made only on the basis of descent is impermissible. However, compassionate appointments are a well-recognized exception to the general rule if they are carved out in the interest of justice to meet public policy considerations [Director General of Posts v. K. Chandrashekar Rao, (2013) 3 SCC 310 (at para 18); Further, constitutionality of compassionate appointments was upheld in State of Haryana v. Ankur Gupta (2003) 7 SCC 704 (at para 6); Yogender Pal Singh v. Union of India (1987) 1 SCC 631 (at para 17)]. It lends justification only that far and no further. 9. While compassionate appointment is an exception to the constitutional guarantee under Article 16, a policy for compassionate appointment must be consistent with the mandate of Articles 14 and 16. That is to say, a policy for compassionate appointment, which has the force of law, must not discriminate on any of the grounds mentioned in Article 16(2), including that of descent. In this regard, descent must be understood to encompass the familial origins of a person [See, Gazula Dasaratha Rama Rao v. State of Andhra Pradesh and Ors. (1961) 2 SCR 931 ]. Familial origins include the validity of the marriage of the parents of a claimant of compassionate appointment and the claimants legitimacy as their child. The policy cannot discriminate against a person only on the ground of descent by classifying children of the deceased employee as legitimate and illegitimate and recognizing only the right of legitimate descendant. Apart from the fact that strict scrutiny would reveal that the classification is suspect, as demonstrated by this Court in V.R. Tripathi, it will instantly fall foul of the constitutional prohibition of discrimination on the ground of descent. Such a policy is violative of Article 16(2). 10. We note with approval the decision of the Delhi High Court in Union of India v. Pankaj Kumar Sharma (Union of India v. Pankaj Kumar Sharma MANU/DE/3959/2014, WP(C) No.9008/2014 dt 19.04.2014), to which one of us (Justice S. Ravindra Bhat) was a party, which held that descent cannot be a ground for denying employment under the scheme of compassionate appointments. Speaking through Sanghi J., the Court held: 22. The Court is of opinion that - apart from being textually sound - understanding descent in terms of prohibiting discrimination against a person on the basis of legitimacy, or on the basis of his mothers status as a first or second wife, fits within the principles underlying Article 16(2). Not only is ones descent, in this sense, entirely beyond ones control (and therefore, ought not to become a ground of State-sanctioned disadvantage), but it is also an established fact that children of second wives, whether counted as illegitimate or legitimate, have often suffered severe social disadvantage. Another significant observation here is that at the entry level - legitimacy is and cannot be a ground for denial of public employment. For these reasons, this Court is of the opinion that the Petitioners regulation violates Article 16(2).
### Response:
1
### Explanation:
14 to exclude such a child from seeking the benefit of compassionate appointment. Such a condition of exclusion is arbitrary and ultra vires.17. Even if the narrow classification test is adopted, the circular of the Railway Board creates two categories between one class of legitimate children. Though the law has regarded a child born from a second marriage as legitimate, a child born from the first marriage of a deceased employee is alone made entitled to the benefit of compassionate appointment. The salutary purpose underlying the grant of compassionate appointment, which is to prevent destitution and penury in the family of a deceased employee requires that any stipulation or condition which is imposed must have or bear a reasonable nexus to the object which is sought to be achieved. The learned Additional Solicitor General has urged that it is open to the State, as part of its policy of discouraging bigamy to restrict the benefit of compassionate appointment, only to the spouse and children of the first marriage and to deny it to the spouse of a subsequent marriage and the children. We are here concerned with the exclusion of children born from a second marriage. By excluding a class of beneficiaries who have been deemed legitimate by the operation of law, the condition imposed is disproportionate to the object sought to be achieved. Having regard to the purpose and object of a scheme of compassionate appointment, once the law has treated such children as legitimate, it would be impermissible to exclude them from being considered for compassionate appointment. Children do not choose their parents. To deny compassionate appointment though the law treats a child of a void marriage as legitimate is deeply offensive to their dignity and is offensive to the constitutional guarantee against discrimination.18. … The exclusion of one class of legitimate children from seeking compassionate appointment merely on the ground that the mother of the applicant was a plural wife of the deceased employee would fail to meet the test of a reasonable nexus with the object sought to be achieved. It would be offensive to and defeat the whole object of ensuring the dignity of the family of a deceased employee who has died in harness. It brings about unconstitutional discrimination between one class of legitimate beneficiaries — legitimate children.7. This Court held that the scheme and the rules of compassionate appointment cannot violate the mandate of Article 14 of the Constitution. Once Section 16 of the Hindu Marriage Act regards a child born from a marriage entered into while the earlier marriage is subsisting to be legitimate, it would violate Article 14 if the policy or rule excludes such a child from seeking the benefit of compassionate appointment. The circular creates two categories between one class, and it has no nexus to the objects sought to be achieved. Once the law has deemed them legitimate, it would be impermissible to exclude them from being considered under the policy. Exclusion of one class of legitimate children would fail to meet the test of nexus with the object, and it would defeat the purpose of ensuring the dignity of the family of the deceased employee. This judgment has now been followed by a number of High Courts as well [See, K. Santhosha v. Karnataka Power Transmission Corp Ltd. 2022(1) Kant LJ 154 (Decided on 24.06.2021 by The High Court of Karnataka); Yuvraj DajeeKhadake v. Union of India: 2019 SCC OnLine Bom 299 (Decided on 21.02.2019 by The High Court of Bombay); Union of India v Rohit Chand 2020 SCC OnLine Del 157. (Decided on 24.01.2020 by The High Court of Delhi)].8. Apart from the discrimination ensuing from treating equals unequally, which is writ large as demonstrated in the judgment of this Court referred to above, there is also discrimination on the ground of descent, which is expressly prohibited under Article 16(2). In V. Sivamurthy v. State of A.P. , this Court observed that appointments made only on the basis of descent is impermissible. However, compassionate appointments are a well-recognized exception to the general rule if they are carved out in the interest of justice to meet public policy considerations [Director General of Posts v. K. Chandrashekar Rao, (2013) 3 SCC 310 (at para 18); Further, constitutionality of compassionate appointments was upheld in State of Haryana v. Ankur Gupta (2003) 7 SCC 704 (at para 6); Yogender Pal Singh v. Union of India (1987) 1 SCC 631 (at para 17)]. It lends justification only that far and no further.Apart from the fact that strict scrutiny would reveal that the classification is suspect, as demonstrated by this Court in V.R. Tripathi, it will instantly fall foul of the constitutional prohibition of discrimination on the ground of descent. Such a policy is violative of Article 16(2).10. We note with approval the decision of the Delhi High Court in Union of India v. Pankaj Kumar Sharma (Union of India v. Pankaj Kumar Sharma MANU/DE/3959/2014, WP(C) No.9008/2014 dt 19.04.2014),to which one of us (Justice S. Ravindra Bhat) was a party, which held that descent cannot be a ground for denying employment under the scheme of compassionate appointments. Speaking through Sanghi J., the Court held:22. The Court is of opinion that - apart from being textually sound - understanding descent in terms of prohibiting discrimination against a person on the basis of legitimacy, or on the basis of his mothers status as a first or second wife, fits within the principles underlying Article 16(2). Not only is ones descent, in this sense, entirely beyond ones control (and therefore, ought not to become a ground of State-sanctioned disadvantage), but it is also an established fact that children of second wives, whether counted as illegitimate or legitimate, have often suffered severe social disadvantage. Another significant observation here is that at the entry level - legitimacy is and cannot be a ground for denial of public employment. For these reasons, this Court is of the opinion that the Petitioners regulation violates Article 16(2).
|
Arun and Ors Vs. State of Maharashtra and Ors | and in view of declaration of election schedule and programme by the respondents, there is constitutional bar to entertain the writ petition.3. The writ petitions are accordingly dismissed."2. The grievance of the Petitioners is that the writ petition was filed at the earliest opportunity on 15.11.2016 to challenge the order passed by Respondent No.3, dated 08.11.2016, rejecting the objection raised by Petitioner No.2 for dereserving the Chande-Kasare Block in relation to the ensuing panchayat election. The hearing of the writ petition was deferred until it was summarily dismissed because of the declaration of the election schedule on 11.01.2017. According to the Petitioners, the State Authorities, including the Election Commission, failed to abide by the mandate of Rules 6, 9 and 10 of The Maharashtra Zilla Parishads and Panchayat Samitis (Manner and Rotation of Reservation of Seats) Rules, 1996, (for short "the 1996 rules"). Further, Section 12 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 (for short "the said Act"), provides for division of District into Electoral Divisions. Sub-clause (d) of sub-section 2 of this Section predicates that one half (including the number of seats reserved for women SC, ST and the category of Backward Class citizens) of the total number of seats to be filled in by direct election in a Zilla Parishad shall be reserved for women and such seats shall be allotted "by rotation" to different Electoral Divisions in the Zilla Parishad. Similarly, the Petitioners are relying on Rules 6, 9 and 10 of the 1996 rules, which provide for the manner of allotment of rotation of seats reserved for women and backward classes of citizens respectively. In the present case, however, contends learned counsel for the petitioners that there has been a clear violation of the said mandate. Therefore, the High Court ought not to have thrown out the petition at the threshold.3. The Petitioners, therefore, have approached this Court to challenge the decision of the High Court as also the decision taken by the State Authorities/Election Commission. It is, however, not in dispute that the election schedule was notified by the State Election Commission on 11.01.2017, pursuant to which the election programme was to proceed and conclude with the declaration of results on 28.02.2017. Accordingly, the Petitioners had applied for an interim relief which was granted by this Court vide order dated 25.01.2017, as follows:"In the 2012 Elections, Electoral Division No.20 (Chande-Kasare) was reserved for women belonging to scheduled Tribe. In the 2017 Elections, it is proposed to be reserved for women belonging to Other Backward Classes.Under the Maharashtra Zilla Parishads and Panchayat Samitis (Manner and Rotation of Reservation of Seats) Rules, 1996, Rule 6 provides for manner of allotment and rotation of seats reserved for women. Under proviso to sub-rule (2) of Rule 6 it is clearly provided that while drawing lots at the time of subsequent general elections, the Electoral Divisions where such seats were already reserved in earlier elections for such women shall be excluded until reservation is given to all the Electoral Divisions by rotation.Shri Rakesh Khanna, learned senior counsel appearing for the Petitioners submits that this rotation is not complete.In the above circumstances, issue notice, returnable on 10.02.2017. The election programme to Electoral Division No.20 (Chande-Kasare), notified as per order dated 11.01.2017 by the State Election Commission, Maharashtra will stand suspended until further orders.Dasti service, in addition, is permitted.Mr. Mahaling Pandarge, learned counsel, appears and accepts notice for Respondent Nos.1, 3 & 4."(Emphasis supplied)In view of the aforementioned interim order, except for the Electoral Division No.20 Chande-Kasare Block, the election programme for rest of the constituencies of the 15 Zilla Parishads and 165 Panchayat Samitis in the State in Phase One of the General Elections proceeded further.4. We have heard the counsel for both sides at length. During the hearing, it was noticed that the scheme regarding rotation of seats reserved for women or backward class of citizens etc., is a very complex process. That is discernible from the relevant provisions regarding allotment and rotation of seats reserved for women. We are of the considered opinion that even if the Petitioners succeed in pursuading us on merits, as the election process of phase one has concluded with declaration of results in respect of other Electoral Divisions, the same cannot be undermined. Any attempt to make adjustment even in respect of one constituency i.e. Electoral Division No.20 (Chande-Kasare), would create an imbalance in the ratio of seats to be reserved for the respective categories as mandated by the provisions of the 1961 Act and the 1996 Rules. Indeed, the Petitioners have invited our attention to the dichotomy in the provisions of the Act, in particular Section 12(2) (d), which postulates allotment of seats by rotation to different Electoral Divisions in a Zilla Parishad whereas the 1996 Rules provides for allocation of seats by drawing of lots. There appears to be some confusion if not conflict in the case of reconciling the mandate of reservation of seats for women in terms of Section 12(2) (d) and reservation of seats for women in reserved categories in terms of the Rules. The fact remains that the validity of provisions contained in the 1996 Rules has not been challenged in the writ petition. Further, the election schedule notified on 11.01.2017 by the State Election Commission has proceeded to its logical end in respect of all other Electoral Divisions of the concerned Zilla Parishad/Panchayat Samitis. There is no challenge to those elections nor those elections have been made subject to the outcome of the present Special Leave Petition. As a result, no effective relief can be granted to the Petitioners.5. As aforesaid, any attempt to do so would inevitably upset the ratio of reservation of seats for women in the other Electoral Divisions where the election process is complete. In other words, accepting the Petitioners prayer in the writ petition at this stage would result in creating an imbalance in that ratio, which will be in violation of the letter and spirit of the law. | 1[ds]We are of the considered opinion that even if the Petitioners succeed in pursuading us on merits, as the election process of phase one has concluded with declaration of results in respect of other Electoral Divisions, the same cannot be undermined. Any attempt to make adjustment even in respect of one constituency i.e. Electoral Division No.20would create an imbalance in the ratio of seats to be reserved for the respective categories as mandated by the provisions of the 1961 Act and the 1996 Rules. Indeed, the Petitioners have invited our attention to the dichotomy in the provisions of the Act, in particular Section 12(2) (d), which postulates allotment of seats by rotation to different Electoral Divisions in a Zilla Parishad whereas the 1996 Rules provides for allocation of seats by drawing of lots. There appears to be some confusion if not conflict in the case of reconciling the mandate of reservation of seats for women in terms of Section 12(2) (d) and reservation of seats for women in reserved categories in terms of the Rules. The fact remains that the validity of provisions contained in the 1996 Rules has not been challenged in the writ petition. Further, the election schedule notified on 11.01.2017 by the State Election Commission has proceeded to its logical end in respect of all other Electoral Divisions of the concerned Zilla Parishad/Panchayat Samitis. There is no challenge to those elections nor those elections have been made subject to the outcome of the present Special Leave Petition. As a result, no effective relief can be granted to the Petitioners.5. As aforesaid, any attempt to do so would inevitably upset the ratio of reservation of seats for women in the other Electoral Divisions where the election process is complete. In other words, accepting the Petitioners prayer in the writ petition at this stage would result in creating an imbalance in that ratio, which will be in violation of the letter and spirit of the law. | 1 | 1,572 | 363 | ### 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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and in view of declaration of election schedule and programme by the respondents, there is constitutional bar to entertain the writ petition.3. The writ petitions are accordingly dismissed."2. The grievance of the Petitioners is that the writ petition was filed at the earliest opportunity on 15.11.2016 to challenge the order passed by Respondent No.3, dated 08.11.2016, rejecting the objection raised by Petitioner No.2 for dereserving the Chande-Kasare Block in relation to the ensuing panchayat election. The hearing of the writ petition was deferred until it was summarily dismissed because of the declaration of the election schedule on 11.01.2017. According to the Petitioners, the State Authorities, including the Election Commission, failed to abide by the mandate of Rules 6, 9 and 10 of The Maharashtra Zilla Parishads and Panchayat Samitis (Manner and Rotation of Reservation of Seats) Rules, 1996, (for short "the 1996 rules"). Further, Section 12 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 (for short "the said Act"), provides for division of District into Electoral Divisions. Sub-clause (d) of sub-section 2 of this Section predicates that one half (including the number of seats reserved for women SC, ST and the category of Backward Class citizens) of the total number of seats to be filled in by direct election in a Zilla Parishad shall be reserved for women and such seats shall be allotted "by rotation" to different Electoral Divisions in the Zilla Parishad. Similarly, the Petitioners are relying on Rules 6, 9 and 10 of the 1996 rules, which provide for the manner of allotment of rotation of seats reserved for women and backward classes of citizens respectively. In the present case, however, contends learned counsel for the petitioners that there has been a clear violation of the said mandate. Therefore, the High Court ought not to have thrown out the petition at the threshold.3. The Petitioners, therefore, have approached this Court to challenge the decision of the High Court as also the decision taken by the State Authorities/Election Commission. It is, however, not in dispute that the election schedule was notified by the State Election Commission on 11.01.2017, pursuant to which the election programme was to proceed and conclude with the declaration of results on 28.02.2017. Accordingly, the Petitioners had applied for an interim relief which was granted by this Court vide order dated 25.01.2017, as follows:"In the 2012 Elections, Electoral Division No.20 (Chande-Kasare) was reserved for women belonging to scheduled Tribe. In the 2017 Elections, it is proposed to be reserved for women belonging to Other Backward Classes.Under the Maharashtra Zilla Parishads and Panchayat Samitis (Manner and Rotation of Reservation of Seats) Rules, 1996, Rule 6 provides for manner of allotment and rotation of seats reserved for women. Under proviso to sub-rule (2) of Rule 6 it is clearly provided that while drawing lots at the time of subsequent general elections, the Electoral Divisions where such seats were already reserved in earlier elections for such women shall be excluded until reservation is given to all the Electoral Divisions by rotation.Shri Rakesh Khanna, learned senior counsel appearing for the Petitioners submits that this rotation is not complete.In the above circumstances, issue notice, returnable on 10.02.2017. The election programme to Electoral Division No.20 (Chande-Kasare), notified as per order dated 11.01.2017 by the State Election Commission, Maharashtra will stand suspended until further orders.Dasti service, in addition, is permitted.Mr. Mahaling Pandarge, learned counsel, appears and accepts notice for Respondent Nos.1, 3 & 4."(Emphasis supplied)In view of the aforementioned interim order, except for the Electoral Division No.20 Chande-Kasare Block, the election programme for rest of the constituencies of the 15 Zilla Parishads and 165 Panchayat Samitis in the State in Phase One of the General Elections proceeded further.4. We have heard the counsel for both sides at length. During the hearing, it was noticed that the scheme regarding rotation of seats reserved for women or backward class of citizens etc., is a very complex process. That is discernible from the relevant provisions regarding allotment and rotation of seats reserved for women. We are of the considered opinion that even if the Petitioners succeed in pursuading us on merits, as the election process of phase one has concluded with declaration of results in respect of other Electoral Divisions, the same cannot be undermined. Any attempt to make adjustment even in respect of one constituency i.e. Electoral Division No.20 (Chande-Kasare), would create an imbalance in the ratio of seats to be reserved for the respective categories as mandated by the provisions of the 1961 Act and the 1996 Rules. Indeed, the Petitioners have invited our attention to the dichotomy in the provisions of the Act, in particular Section 12(2) (d), which postulates allotment of seats by rotation to different Electoral Divisions in a Zilla Parishad whereas the 1996 Rules provides for allocation of seats by drawing of lots. There appears to be some confusion if not conflict in the case of reconciling the mandate of reservation of seats for women in terms of Section 12(2) (d) and reservation of seats for women in reserved categories in terms of the Rules. The fact remains that the validity of provisions contained in the 1996 Rules has not been challenged in the writ petition. Further, the election schedule notified on 11.01.2017 by the State Election Commission has proceeded to its logical end in respect of all other Electoral Divisions of the concerned Zilla Parishad/Panchayat Samitis. There is no challenge to those elections nor those elections have been made subject to the outcome of the present Special Leave Petition. As a result, no effective relief can be granted to the Petitioners.5. As aforesaid, any attempt to do so would inevitably upset the ratio of reservation of seats for women in the other Electoral Divisions where the election process is complete. In other words, accepting the Petitioners prayer in the writ petition at this stage would result in creating an imbalance in that ratio, which will be in violation of the letter and spirit of the law.
### Response:
1
### Explanation:
We are of the considered opinion that even if the Petitioners succeed in pursuading us on merits, as the election process of phase one has concluded with declaration of results in respect of other Electoral Divisions, the same cannot be undermined. Any attempt to make adjustment even in respect of one constituency i.e. Electoral Division No.20would create an imbalance in the ratio of seats to be reserved for the respective categories as mandated by the provisions of the 1961 Act and the 1996 Rules. Indeed, the Petitioners have invited our attention to the dichotomy in the provisions of the Act, in particular Section 12(2) (d), which postulates allotment of seats by rotation to different Electoral Divisions in a Zilla Parishad whereas the 1996 Rules provides for allocation of seats by drawing of lots. There appears to be some confusion if not conflict in the case of reconciling the mandate of reservation of seats for women in terms of Section 12(2) (d) and reservation of seats for women in reserved categories in terms of the Rules. The fact remains that the validity of provisions contained in the 1996 Rules has not been challenged in the writ petition. Further, the election schedule notified on 11.01.2017 by the State Election Commission has proceeded to its logical end in respect of all other Electoral Divisions of the concerned Zilla Parishad/Panchayat Samitis. There is no challenge to those elections nor those elections have been made subject to the outcome of the present Special Leave Petition. As a result, no effective relief can be granted to the Petitioners.5. As aforesaid, any attempt to do so would inevitably upset the ratio of reservation of seats for women in the other Electoral Divisions where the election process is complete. In other words, accepting the Petitioners prayer in the writ petition at this stage would result in creating an imbalance in that ratio, which will be in violation of the letter and spirit of the law.
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Momna Gauri Vs. Regional Manager and Ors | filed.7. The District Forum considered the rival pleadings and the documents produced by the parties and held that the vehicle purchased by the appellant had a manufacturing defect and that was the reason why the chassis had broken more than once. The District Forum noticed the plea of respondent Nos.1 and 2 that the cracks had developed in the chassis because of overloading and rejected the same by observing that no tangible evidence was produced to substantiate this assertion. The objection regarding non-impleadment of Shriram Transport Finance Agency as a party was also rejected by the District Forum on the ground that its presence was not necessary for deciding the complaint. In conclusion, the District Forum allowed the complaint and directed the respondents to make available new vehicle to the appellant, who was directed to deposit the old vehicle. The District Forum further directed the appellant to give intimation to the Finance Company about the change of vehicle.8. The appeal filed by the respondents was dismissed by the State Commission by recording its agreement with the District Forum on the issue of deficiency in service.9. The National Commission modified the direction given by the District Forum by relying upon the judgment in Maruti Udyog Ltd. v. Susheel Kumar Gabgotra, (2006) 4 SCC 644. The operative portion of the order passed by the National Commission reads as under : "There is not doubt that the chassis of the brand new three wheeler motor vehicle broke down within a short period. Whether this was due to the alleged over-loading could not be clearly established by the petitioners merely on the strength of the challans of fines under the M.V. Act, produced by them. However, we are inclined to agree with Ms. Kohli that in view of the law on the subject laid down by the Apex Court in a catena of judgments (including that in the case cited by Mrs. Kohli above), replacement of the defective chassis by a new one is the legally available relief to the respondent. We, therefore, direct the petitioners to replace the chassis of the vehicle with a brand new one and provide the requisite fresh warranty therefore. In addition, any repairs that may be necessary to make the vehicle completely road-worthy shall be carried out by the petitioners free of charge to the respondent. These directions shall be complied with within two weeks of the respondent bringing the vehicle in question to the premises of the authorized dealer. In addition, considering the specific fact and circumstances of the case, the petitioner shall pay a sum of Rs.10,000/- to respondent No. 1 towards the cost of the proceeding all through, within four weeks from the dated of this order." 10. The plea of respondent Nos. 1 and 2 that chassis of the vehicle had broken down due to overloading was rejected by the National Commission by recording the following observations: "There is not doubt that the chassis of the brand new three wheeler motor vehicle broke down within a short period. Whether this was due to the alleged over-loading could not be clearly established by the petitioners merely on the strength of the challans of fines under the M.V. Act, produced by them." 11. We have heard learned counsel for the parties. Section 21 of the Act, which relates to the jurisdiction of the National Commission reads as under: "21. Jurisdiction of the National Commission. Subject to the other provisions of this Act, the National Commission shall have jurisdiction(a) to entertain -(i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees one crore; and(ii) appeals against the orders of any State Commission; and(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity." 12. The aforesaid provision was interpreted by this Court in Rubi (Chandra) Dutta v. United India Insurance Company Limited, 2011(2) R.C.R.(Civil) 591 : 2011(2) Recent Apex Judgments (R.A.J.) 250 : (2011) 11 SCC 269 and it was observed : "Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21(b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora." 13. In the present case, the National Commission did not find any jurisdictional error or perversity in the finding recorded by the District Forum on the issue of deficiency in service. The National Commission also did not find any fault with the conclusion recorded by the District Forum that there was manufacturing defect in the vehicle sold to the appellant. Therefore, it must be held that by interfering with the order of the District Forum, the National Commission transgressed the limits of its jurisdiction under Section 21 of the Act. | 1[ds]13. In the present case, the National Commission did not find any jurisdictional error or perversity in the finding recorded by the District Forum on the issue of deficiency in service. The National Commission also did not find any fault with the conclusion recorded by the District Forum that there was manufacturing defect in the vehicle sold to the appellant. Therefore, it must be held that by interfering with the order of the District Forum, the National Commission transgressed the limits of its jurisdiction under Section 21 of the Act. | 1 | 2,034 | 101 | ### 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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filed.7. The District Forum considered the rival pleadings and the documents produced by the parties and held that the vehicle purchased by the appellant had a manufacturing defect and that was the reason why the chassis had broken more than once. The District Forum noticed the plea of respondent Nos.1 and 2 that the cracks had developed in the chassis because of overloading and rejected the same by observing that no tangible evidence was produced to substantiate this assertion. The objection regarding non-impleadment of Shriram Transport Finance Agency as a party was also rejected by the District Forum on the ground that its presence was not necessary for deciding the complaint. In conclusion, the District Forum allowed the complaint and directed the respondents to make available new vehicle to the appellant, who was directed to deposit the old vehicle. The District Forum further directed the appellant to give intimation to the Finance Company about the change of vehicle.8. The appeal filed by the respondents was dismissed by the State Commission by recording its agreement with the District Forum on the issue of deficiency in service.9. The National Commission modified the direction given by the District Forum by relying upon the judgment in Maruti Udyog Ltd. v. Susheel Kumar Gabgotra, (2006) 4 SCC 644. The operative portion of the order passed by the National Commission reads as under : "There is not doubt that the chassis of the brand new three wheeler motor vehicle broke down within a short period. Whether this was due to the alleged over-loading could not be clearly established by the petitioners merely on the strength of the challans of fines under the M.V. Act, produced by them. However, we are inclined to agree with Ms. Kohli that in view of the law on the subject laid down by the Apex Court in a catena of judgments (including that in the case cited by Mrs. Kohli above), replacement of the defective chassis by a new one is the legally available relief to the respondent. We, therefore, direct the petitioners to replace the chassis of the vehicle with a brand new one and provide the requisite fresh warranty therefore. In addition, any repairs that may be necessary to make the vehicle completely road-worthy shall be carried out by the petitioners free of charge to the respondent. These directions shall be complied with within two weeks of the respondent bringing the vehicle in question to the premises of the authorized dealer. In addition, considering the specific fact and circumstances of the case, the petitioner shall pay a sum of Rs.10,000/- to respondent No. 1 towards the cost of the proceeding all through, within four weeks from the dated of this order." 10. The plea of respondent Nos. 1 and 2 that chassis of the vehicle had broken down due to overloading was rejected by the National Commission by recording the following observations: "There is not doubt that the chassis of the brand new three wheeler motor vehicle broke down within a short period. Whether this was due to the alleged over-loading could not be clearly established by the petitioners merely on the strength of the challans of fines under the M.V. Act, produced by them." 11. We have heard learned counsel for the parties. Section 21 of the Act, which relates to the jurisdiction of the National Commission reads as under: "21. Jurisdiction of the National Commission. Subject to the other provisions of this Act, the National Commission shall have jurisdiction(a) to entertain -(i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees one crore; and(ii) appeals against the orders of any State Commission; and(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity." 12. The aforesaid provision was interpreted by this Court in Rubi (Chandra) Dutta v. United India Insurance Company Limited, 2011(2) R.C.R.(Civil) 591 : 2011(2) Recent Apex Judgments (R.A.J.) 250 : (2011) 11 SCC 269 and it was observed : "Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21(b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora." 13. In the present case, the National Commission did not find any jurisdictional error or perversity in the finding recorded by the District Forum on the issue of deficiency in service. The National Commission also did not find any fault with the conclusion recorded by the District Forum that there was manufacturing defect in the vehicle sold to the appellant. Therefore, it must be held that by interfering with the order of the District Forum, the National Commission transgressed the limits of its jurisdiction under Section 21 of the Act.
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13. In the present case, the National Commission did not find any jurisdictional error or perversity in the finding recorded by the District Forum on the issue of deficiency in service. The National Commission also did not find any fault with the conclusion recorded by the District Forum that there was manufacturing defect in the vehicle sold to the appellant. Therefore, it must be held that by interfering with the order of the District Forum, the National Commission transgressed the limits of its jurisdiction under Section 21 of the Act.
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M/S. J.K.Surface Coatings Private Limited Vs. Oil and Natural Gas Corporation & Others | offered any defence whatsoever. In this connection, it is interesting to note that under the English law, it was held few years before that non-compliance with principles of natural justice would make the order null and void and no further inquiry was necessary.***36. The recent trend, however, is of prejudice. Even in those cases where procedural requirements have not been complied with, the action has not been held ipso facto illegal, unlawful or void unless it is shown that non-observance had prejudicially affected the applicant.***44. From the aforesaid decisions, it is clear that though supply of report of the inquiry officer is part and parcel of natural justice and must be furnished to the delinquent employee, failure to do so would not automatically result in quashing or setting aside of the order or the order being declared null and void. For that, the delinquent employee has to show prejudice. Unless he is able to show that non-supply of report of the inquiry officer has resulted in prejudice or miscarriage of justice, an order of punishment cannot be held to be vitiated. And whether prejudice had been caused to the delinquent employee depends upon the facts and circumstances of each case and no rule of universal application can be laid down.(emphasis in original)33. When we apply the ratio of the aforesaid judgment to the facts of the present case, it becomes difficult to accept the argument of the learned Additional Solicitor General. In the first instance, we may point out that no such case was set up by the respondents that by omitting to state the proposed action of blacklisting the appellant in the show-cause notice, has not caused any prejudice to the appellant. Moreover, had the action of blacklisting being specifically proposed in the show-cause notice, the appellant could have mentioned as to why such extreme penalty is not justified. It could have come out with extenuating circumstances defending such an action even if the defaults were there and the Department was not satisfied with the explanation qua the defaults. It could have even pleaded with the Department not to blacklist the appellant or do it for a lesser period in case the Department still wanted to blacklist the appellant. Therefore, it is not at all acceptable that non-mentioning of proposed blacklisting in the show-cause notice has not caused any prejudice to the appellant. This apart, the extreme nature of such a harsh penalty like blacklisting with severe consequences, would itself amount to causing prejudice to the appellant.18. In view of this authoritative pronouncement of the Supreme Court in the case of Gorkha Security Services (2014) 9 SCC 105 ), we would be justified in setting aside the impugned banning order dated 25th April, 2014 on this ground alone.19. Even otherwise, on carefully going through the facts of the present case and more particularly the SCN and the banning order passed pursuant thereto, what we find is that the disputes in the present case are predominantly of a contractual nature. The SCN does not even allege that there is any fraud or misrepresentation done by the Petitioner or that he is a habitual offender. Furthermore, this SCN has been issued almost 2 d years after completion of the contract and even though a completion certificate was issued to the Petitioner by Respondent No.1. Even the operative part of the banning order (and which is reproduced by us earlier), also clearly indicates that the disputes between the parties was of a contractual nature and there were no serious allegations against the Petitioner. The only allegation made against the Petitioner was that the Petitioner had manipulated manpower deployment details and submitted improper and erroneous documents for the purpose of inflating payment of the painting work. On what basis this finding has been arrived at is completely silent in the banning order. Further, though the banning order states that the 1st Respondent having given an impartial and prudent consideration to the facts, is coming to the conclusions that it did, is completely silent as to who was the Officer who had given this impartial, prudent and careful consideration. It is also an admitted fact that no inquiry report was ever served upon the Petitioner pursuant to the investigation carried out by the Inquiry Officer (A. K. Srivastava). What can be gathered from the facts is that there appears to be a dispute with reference to two invoices, namely, invoice Nos. 34 and 43. It was the case of the 1st Respondent that double payment / over payment had been made with reference to these invoices and these monies were to be recovered from the Petitioner. This was in fact done by the 1st Respondent by invoking the two bank guarantees referred to earlier. Looking to all these facts, and applying the principles on which a blacklisting/banning order can be passed and succinctly set out by the Supreme Court in the case of Kulja Industries Limited (2014) 14 SCC 731 ), we do not think that in the facts and circumstances of the present case, the order of blacklisting (dated 25th April, 2014) was at all justified. In fact, we find considerable force in the argument of Mr Moray that the aforesaid action is taken only with a view to ensure that the Petitioner is kept out of the bidding process and could not be awarded the subsequent tender No. Y-15 MC 11001 for which the Petitioner had qualified and was the lowest tenderer (L-1).20. Even on the principle of proportionality, we find that the banning order cannot be continued any further. The impugned banning order was passed on 25th April, 2014 and has continued till date which is for a period of more than 2 d years. Even if we were to assume that the allegations in the blacklisting order (dated 25th April, 2014) as the gospel truth, the Petitioner, having suffered the banning order for a period of 2 d years (out of the total period of three years) has to go. | 1[ds]14. We have heard the learned counsel at length and perused the papers and proceedings in the Writ Petition along with the annexures thereto as well asfiled on behalf of all the Respondents. Before we deal with the rival contentions, we would like to set out some settled principles that have been laid down by the Supreme Court on blacklisting and/or banning a party from dealing and/or participating in contracts/tenders floated by the Government and or its undertakings. The power to blacklist a contractor, whether the contract be for supply of material or equipment or for the execution of any other work whatsoever, is inherent in the party allotting the contract. There is, therefore, no need for any such power being specifically conferred by the statute or reserved by the party awarding the contract. This is because blacklisting/banning simply signifies a business decision by which the party affected by the breach decides not to enter into any contractual relationship with the party committing the breach. In the normal course, between two private parties, the right to take any such decision is absolute and untrammelled by any constraints whatsoever. The freedom to contract or not to contract is unqualified in the case of private parties. However, when such a decision is taken by the State or any of its instrumentalities, the same would be open to scrutiny not only on the touchstone of the principles of natural justice but also on the doctrine of proportionality. In other words, the Court would have the power to examine whether the punishment meeted out is commensurate with the crime. Therefore, a fair hearing to the party becomes an essentialfor a proper exercise of the power and to uphold the blacklisting order. Blacklisting has the effect of preventing a person from the privilege of entering into any contract or relationship with the Government for the purposes of gain. The fact that a disability is created by the order of blacklisting indicates that the relevant authority is to have an objective satisfaction before such an order is passed. Hence, objective satisfaction andon the part of the authority issuing the blacklisting order is of paramount importance. To put it in a nutshell, merely due to some contractual disputes, a banning order passed by the concerned authority would be too harsh. Only on the basis of some contractual violations which have an equally effacious remedy available for redressal of those violations, cannot be the only ground for passing the banning order. Considering that a blacklisting/banning order virtually leads to a civil death of the person/party blacklisted, there has to be definitely something more than just contractual disputes, such as frequency of incidents and/or duration of wrong doing; whether there is a pattern or prior history of wrong doing; whether the contractor has accepted the responsibility for the wrong doing and recognised the seriousness of the misconduct; etc. Suffice it to state that blacklisting/banning is recognized and often used as an effective method for disciplining deviant contractors who may have committed acts of fraud, misrepresentations, falsification of records and other breaches of regulations under which such contracts are awarded. What is important is that blacklisting is never permanent and the period of blacklisting would invariably depend upon the nature of the offence committed by the Contractor. These principles are very well settled and have been succinctly set out by the Supreme Court in the case of Kulja Industries Limited Vs. Chief Manager, Western Telecom Project Bharat Sanchar Nigam Limited and Others (2014) 14 SCC 731 ).In this regard, the Petitioner was advised to furnish its clarification / explanation, if any. There is not a whisper in the said SCN that any action is going to be taken against the Petitioner, letalone the fact that the Petitioner was being considered for being blacklisted from dealing with the 1st Respondent Corporation. As mentioned earlier, this SCN was replied to by the Petitioner by its letter dated 16th December, 2013 and sought to explain all the above alleged irregularities / discrepancies. It is in this light that, we are surprised that the impugned order dated 25th April, 2014, bans / blacklists the Petitioner from doing any business with the 1st Respondent Corporation for a period of three years from the date of the blacklisting order. We find considerable force in the argument of Mr Moray that the SCN did not even indicate,mention, that the same was issued with a view to consider whether to ban / blacklist the Petitioner Company. In other words, the Petitioner was not even called upon to show cause as to why they should not be blacklisted and/or banned from dealing with the 1st Respondent.17. In this regard, it would be apposite to refer to a decision of the Supreme Court in the case of Gorkha Security Services Vs Govt. (NCT of Delhi). (2014) 9 SCC 105 )Paragraphs 21, 32 and 33 of the aforesaid decision are very instructive and clearly lay down that mentioning or even indicating the proposed action of blacklisting in the SCN is imperative so as to make the noticee understand the proposed case set up against him which he has to meet. In the absence of this, the blacklisting/banning order would be bad in law. The relevant portion of this Supreme Court decision readsThe central issue, however, pertains to the requirement of stating the action which is proposed to be taken. The fundamental purpose behind the serving ofnotice is to make the notice understand the precise case set up against him which he has to meet. This would require the statement of imputations detailing out the alleged breaches and defaults he has committed, so that he gets an opportunity to rebut the same. Another requirement, according to us, is the nature of action which is proposed to be taken for such a breach. That should also be stated so that the noticee is able to point out that proposed action is not warranted in the given case, even if the defaults/breaches complained of are not satisfactorily explained. When it comes to blacklisting, this requirement becomes all the more imperative, having regard to the fact that it is harshest possible action.******32. It was sought to be argued by Mr Maninder Singh, learned Additional Solicitor General appearing for the respondent, that even if it is accepted that thenotice should have contained the proposed action of blacklisting, no prejudice was caused to the appellant inasmuch as all necessary details mentioning defaults/prejudices committed by the appellant were given in thenotice and the appellant had even given its reply thereto. According to him, even if the action of blacklisting was not proposed in thenotice, the reply of the appellant would have remained the same. On this premise, the learned Additional Solicitor General has argued that there is no prejudice caused to the appellant byof the proposed action of blacklisting. He argued that unless the appellant was able to show thatof blacklisting as the proposed penalty has caused prejudice and has resulted in miscarriage of justice, the impugned action cannot be nullified. For this proposition he referred to the judgment of this Court in Haryana Financial Corpn. v. Kailash Chandra Ahuja [(2008) 9 SCC 31 : (2008) 2 SCC789] : (SCC pp. 38,4, paras 21, 31, 3644).21. From the ratio laid down in B. Karunakar [ECIL v. B. Karunakar, (1993) 4 SCC 727 : 1993 SCC1184 : (1993) 25 ATC 704] it is explicitly clear that the doctrine of natural justice requires supply of a copy of the inquiry officers report to the delinquent if such inquiry officer is other than the disciplinary authority. It is also clear thatof report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non est and ineffective. It is for the delinquent employee to plead and prove thatof such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the court on that point, the order of punishment cannot automatically be set aside.***31. At the same time, however, effect of violation of the rule of audi alteram partem has to be considered. Even if hearing is not afforded to the person who is sought to be affected or penalised, can it not be argued thatwould have served no purpose orcould not have made difference orperson could not have offered any defence whatsoever. In this connection, it is interesting to note that under the English law, it was held few years before thatwith principles of natural justice would make the order null and void and no further inquiry was necessary.***36. The recent trend, however, is ofEven in those cases where procedural requirements have not been complied with, the action has not been held ipso facto illegal, unlawful or void unless it is shown thathad prejudicially affected the applicant.***44. From the aforesaid decisions, it is clear that though supply of report of the inquiry officer is part and parcel of natural justice and must be furnished to the delinquent employee, failure to do so would not automatically result in quashing or setting aside of the order or the order being declared null and void. For that, the delinquent employee has to showUnless he is able to show thatof report of the inquiry officer has resulted in prejudice or miscarriage of justice, an order of punishment cannot be held to be vitiated. And whether prejudice had been caused to the delinquent employee depends upon the facts and circumstances of each case and no rule of universal application can be laid down.(emphasis in original)33. When we apply the ratio of the aforesaid judgment to the facts of the present case, it becomes difficult to accept the argument of the learned Additional Solicitor General. In the first instance, we may point out that no such case was set up by the respondents that by omitting to state the proposed action of blacklisting the appellant in thenotice, has not caused any prejudice to the appellant. Moreover, had the action of blacklisting being specifically proposed in thenotice, the appellant could have mentioned as to why such extreme penalty is not justified. It could have come out with extenuating circumstances defending such an action even if the defaults were there and the Department was not satisfied with the explanation qua the defaults. It could have even pleaded with the Department not to blacklist the appellant or do it for a lesser period in case the Department still wanted to blacklist the appellant. Therefore, it is not at all acceptable thatof proposed blacklisting in thenotice has not caused any prejudice to the appellant. This apart, the extreme nature of such a harsh penalty like blacklisting with severe consequences, would itself amount to causing prejudice to the appellant.18. In view of this authoritative pronouncement of the Supreme Court in the case of Gorkha Security Services (2014) 9 SCC 105 ), we would be justified in setting aside the impugned banning order dated 25th April, 2014 on this ground alone.19. Even otherwise, on carefully going through the facts of the present case and more particularly the SCN and the banning order passed pursuant thereto, what we find is that the disputes in the present case are predominantly of a contractual nature. The SCN does not even allege that there is any fraud or misrepresentation done by the Petitioner or that he is a habitual offender. Furthermore, this SCN has been issued almost 2 d years after completion of the contract and even though a completion certificate was issued to the Petitioner by Respondent No.1. Even the operative part of the banning order (and which is reproduced by us earlier), also clearly indicates that the disputes between the parties was of a contractual nature and there were no serious allegations against the Petitioner. The only allegation made against the Petitioner was that the Petitioner had manipulated manpower deployment details and submitted improper and erroneous documents for the purpose of inflating payment of the painting work. On what basis this finding has been arrived at is completely silent in the banning order. Further, though the banning order states that the 1st Respondent having given an impartial and prudent consideration to the facts, is coming to the conclusions that it did, is completely silent as to who was the Officer who had given this impartial, prudent and careful consideration. It is also an admitted fact that no inquiry report was ever served upon the Petitioner pursuant to the investigation carried out by the Inquiry Officer (A. K. Srivastava). What can be gathered from the facts is that there appears to be a dispute with reference to two invoices, namely, invoice Nos. 34 and 43. It was the case of the 1st Respondent that double payment / over payment had been made with reference to these invoices and these monies were to be recovered from the Petitioner. This was in fact done by the 1st Respondent by invoking the two bank guarantees referred to earlier. Looking to all these facts, and applying the principles on which a blacklisting/banning order can be passed and succinctly set out by the Supreme Court in the case of Kulja Industries Limited (2014) 14 SCC 731 ), we do not think that in the facts and circumstances of the present case, the order of blacklisting (dated 25th April, 2014) was at all justified. In fact, we find considerable force in the argument of Mr Moray that the aforesaid action is taken only with a view to ensure that the Petitioner is kept out of the bidding process and could not be awarded the subsequent tender No.Even on the principle of proportionality, we find that the banning order cannot be continued any further. The impugned banning order was passed on 25th April, 2014 and has continued till date which is for a period of more than 2 d years. Even if we were to assume that the allegations in the blacklisting order (dated 25th April, 2014) as the gospel truth, the Petitioner, having suffered the banning order for a period of 2 d years (out of the total period of three years) has to go. | 1 | 7,672 | 2,635 | ### 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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offered any defence whatsoever. In this connection, it is interesting to note that under the English law, it was held few years before that non-compliance with principles of natural justice would make the order null and void and no further inquiry was necessary.***36. The recent trend, however, is of prejudice. Even in those cases where procedural requirements have not been complied with, the action has not been held ipso facto illegal, unlawful or void unless it is shown that non-observance had prejudicially affected the applicant.***44. From the aforesaid decisions, it is clear that though supply of report of the inquiry officer is part and parcel of natural justice and must be furnished to the delinquent employee, failure to do so would not automatically result in quashing or setting aside of the order or the order being declared null and void. For that, the delinquent employee has to show prejudice. Unless he is able to show that non-supply of report of the inquiry officer has resulted in prejudice or miscarriage of justice, an order of punishment cannot be held to be vitiated. And whether prejudice had been caused to the delinquent employee depends upon the facts and circumstances of each case and no rule of universal application can be laid down.(emphasis in original)33. When we apply the ratio of the aforesaid judgment to the facts of the present case, it becomes difficult to accept the argument of the learned Additional Solicitor General. In the first instance, we may point out that no such case was set up by the respondents that by omitting to state the proposed action of blacklisting the appellant in the show-cause notice, has not caused any prejudice to the appellant. Moreover, had the action of blacklisting being specifically proposed in the show-cause notice, the appellant could have mentioned as to why such extreme penalty is not justified. It could have come out with extenuating circumstances defending such an action even if the defaults were there and the Department was not satisfied with the explanation qua the defaults. It could have even pleaded with the Department not to blacklist the appellant or do it for a lesser period in case the Department still wanted to blacklist the appellant. Therefore, it is not at all acceptable that non-mentioning of proposed blacklisting in the show-cause notice has not caused any prejudice to the appellant. This apart, the extreme nature of such a harsh penalty like blacklisting with severe consequences, would itself amount to causing prejudice to the appellant.18. In view of this authoritative pronouncement of the Supreme Court in the case of Gorkha Security Services (2014) 9 SCC 105 ), we would be justified in setting aside the impugned banning order dated 25th April, 2014 on this ground alone.19. Even otherwise, on carefully going through the facts of the present case and more particularly the SCN and the banning order passed pursuant thereto, what we find is that the disputes in the present case are predominantly of a contractual nature. The SCN does not even allege that there is any fraud or misrepresentation done by the Petitioner or that he is a habitual offender. Furthermore, this SCN has been issued almost 2 d years after completion of the contract and even though a completion certificate was issued to the Petitioner by Respondent No.1. Even the operative part of the banning order (and which is reproduced by us earlier), also clearly indicates that the disputes between the parties was of a contractual nature and there were no serious allegations against the Petitioner. The only allegation made against the Petitioner was that the Petitioner had manipulated manpower deployment details and submitted improper and erroneous documents for the purpose of inflating payment of the painting work. On what basis this finding has been arrived at is completely silent in the banning order. Further, though the banning order states that the 1st Respondent having given an impartial and prudent consideration to the facts, is coming to the conclusions that it did, is completely silent as to who was the Officer who had given this impartial, prudent and careful consideration. It is also an admitted fact that no inquiry report was ever served upon the Petitioner pursuant to the investigation carried out by the Inquiry Officer (A. K. Srivastava). What can be gathered from the facts is that there appears to be a dispute with reference to two invoices, namely, invoice Nos. 34 and 43. It was the case of the 1st Respondent that double payment / over payment had been made with reference to these invoices and these monies were to be recovered from the Petitioner. This was in fact done by the 1st Respondent by invoking the two bank guarantees referred to earlier. Looking to all these facts, and applying the principles on which a blacklisting/banning order can be passed and succinctly set out by the Supreme Court in the case of Kulja Industries Limited (2014) 14 SCC 731 ), we do not think that in the facts and circumstances of the present case, the order of blacklisting (dated 25th April, 2014) was at all justified. In fact, we find considerable force in the argument of Mr Moray that the aforesaid action is taken only with a view to ensure that the Petitioner is kept out of the bidding process and could not be awarded the subsequent tender No. Y-15 MC 11001 for which the Petitioner had qualified and was the lowest tenderer (L-1).20. Even on the principle of proportionality, we find that the banning order cannot be continued any further. The impugned banning order was passed on 25th April, 2014 and has continued till date which is for a period of more than 2 d years. Even if we were to assume that the allegations in the blacklisting order (dated 25th April, 2014) as the gospel truth, the Petitioner, having suffered the banning order for a period of 2 d years (out of the total period of three years) has to go.
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1
### Explanation:
not afforded to the person who is sought to be affected or penalised, can it not be argued thatwould have served no purpose orcould not have made difference orperson could not have offered any defence whatsoever. In this connection, it is interesting to note that under the English law, it was held few years before thatwith principles of natural justice would make the order null and void and no further inquiry was necessary.***36. The recent trend, however, is ofEven in those cases where procedural requirements have not been complied with, the action has not been held ipso facto illegal, unlawful or void unless it is shown thathad prejudicially affected the applicant.***44. From the aforesaid decisions, it is clear that though supply of report of the inquiry officer is part and parcel of natural justice and must be furnished to the delinquent employee, failure to do so would not automatically result in quashing or setting aside of the order or the order being declared null and void. For that, the delinquent employee has to showUnless he is able to show thatof report of the inquiry officer has resulted in prejudice or miscarriage of justice, an order of punishment cannot be held to be vitiated. And whether prejudice had been caused to the delinquent employee depends upon the facts and circumstances of each case and no rule of universal application can be laid down.(emphasis in original)33. When we apply the ratio of the aforesaid judgment to the facts of the present case, it becomes difficult to accept the argument of the learned Additional Solicitor General. In the first instance, we may point out that no such case was set up by the respondents that by omitting to state the proposed action of blacklisting the appellant in thenotice, has not caused any prejudice to the appellant. Moreover, had the action of blacklisting being specifically proposed in thenotice, the appellant could have mentioned as to why such extreme penalty is not justified. It could have come out with extenuating circumstances defending such an action even if the defaults were there and the Department was not satisfied with the explanation qua the defaults. It could have even pleaded with the Department not to blacklist the appellant or do it for a lesser period in case the Department still wanted to blacklist the appellant. Therefore, it is not at all acceptable thatof proposed blacklisting in thenotice has not caused any prejudice to the appellant. This apart, the extreme nature of such a harsh penalty like blacklisting with severe consequences, would itself amount to causing prejudice to the appellant.18. In view of this authoritative pronouncement of the Supreme Court in the case of Gorkha Security Services (2014) 9 SCC 105 ), we would be justified in setting aside the impugned banning order dated 25th April, 2014 on this ground alone.19. Even otherwise, on carefully going through the facts of the present case and more particularly the SCN and the banning order passed pursuant thereto, what we find is that the disputes in the present case are predominantly of a contractual nature. The SCN does not even allege that there is any fraud or misrepresentation done by the Petitioner or that he is a habitual offender. Furthermore, this SCN has been issued almost 2 d years after completion of the contract and even though a completion certificate was issued to the Petitioner by Respondent No.1. Even the operative part of the banning order (and which is reproduced by us earlier), also clearly indicates that the disputes between the parties was of a contractual nature and there were no serious allegations against the Petitioner. The only allegation made against the Petitioner was that the Petitioner had manipulated manpower deployment details and submitted improper and erroneous documents for the purpose of inflating payment of the painting work. On what basis this finding has been arrived at is completely silent in the banning order. Further, though the banning order states that the 1st Respondent having given an impartial and prudent consideration to the facts, is coming to the conclusions that it did, is completely silent as to who was the Officer who had given this impartial, prudent and careful consideration. It is also an admitted fact that no inquiry report was ever served upon the Petitioner pursuant to the investigation carried out by the Inquiry Officer (A. K. Srivastava). What can be gathered from the facts is that there appears to be a dispute with reference to two invoices, namely, invoice Nos. 34 and 43. It was the case of the 1st Respondent that double payment / over payment had been made with reference to these invoices and these monies were to be recovered from the Petitioner. This was in fact done by the 1st Respondent by invoking the two bank guarantees referred to earlier. Looking to all these facts, and applying the principles on which a blacklisting/banning order can be passed and succinctly set out by the Supreme Court in the case of Kulja Industries Limited (2014) 14 SCC 731 ), we do not think that in the facts and circumstances of the present case, the order of blacklisting (dated 25th April, 2014) was at all justified. In fact, we find considerable force in the argument of Mr Moray that the aforesaid action is taken only with a view to ensure that the Petitioner is kept out of the bidding process and could not be awarded the subsequent tender No.Even on the principle of proportionality, we find that the banning order cannot be continued any further. The impugned banning order was passed on 25th April, 2014 and has continued till date which is for a period of more than 2 d years. Even if we were to assume that the allegations in the blacklisting order (dated 25th April, 2014) as the gospel truth, the Petitioner, having suffered the banning order for a period of 2 d years (out of the total period of three years) has to go.
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Hmt Watches Ltd Vs. M.A. Abida | 9. Section 140 of the Negotiable Instruments Act, 1881 prohibits what cannot be a defence in a prosecution in respect of offence punishable under Section 138 of the N.I. Act. It reads as under: “140. Defence which may not be allowed in any prosecution under section 138. –Defence which may not be allowed in any prosecution under section 138 It shall not be a defence in a prosecution of an offence under section 138 that the drawer had no reason to believe when he issued the cheque that the cheque may be dishonoured on presentment for the reasons stated in that section.” 10. Having heard learned counsel for the parties, we are of the view that the accused (respondent no.1) challenged the proceedings of criminal complaint cases before the High Court, taking factual defences. Whether the cheques were given as security or not, or whether there was outstanding liability or not is a question of fact which could have been determined only by the trial court after recording evidence of the parties. In our opinion, the High Court should not have expressed its view on the disputed questions of fact in a petition under Section 482 of the Code of Criminal Procedure, to come to a conclusion that the offence is not made out. The High Court has erred in law in going into the factual aspects of the matter which were not admitted between the parties. The High Court further erred in observing that Section 138(b) of N.I. Act stood uncomplied, even though the respondent no.1 (accused) had admitted that he replied the notice issued by the complainant. Also, the fact, as to whether the signatory of demand notice was authorized by the complainant company or not, could not have been examined by the High Court in its jurisdiction under Section 482 of the Code of Criminal Procedure when such plea was controverted by the complainant before it. 11. In Suryalakshmi Cotton Mills Limited v. Rajvir Industries Limited and others (2008) 13 SCC 678 ), this Court has made following observations explaining the parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure: - “17. The parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure is now well settled. Although it is of wide amplitude, a great deal of caution is also required in its exercise. What is required is application of the well-known legal principles involved in the matter.xxx xxx xxx22. Ordinarily, a defence of an accused although appears to be plausible should not be taken into consideration for exercise of the said jurisdiction. Yet again, the High Court at that stage would not ordinarily enter into a disputed question of fact. It, however, does not mean that documents of unimpeachable character should not be taken into consideration at any cost for the purpose of finding out as to whether continuance of the criminal proceedings would amount to an abuse of process of court or that the complaint petition is filed for causing mere harassment to the accused. While we are not oblivious of the fact that although a large number of disputes should ordinarily be determined only by the civil courts, but criminal cases are filed only for achieving the ultimate goal, namely, to force the accused to pay the amount due to the complainant immediately. The courts on the one hand should not encourage such a practice; but, on the other, cannot also travel beyond its jurisdiction to interfere with the proceeding which is otherwise genuine. The courts cannot also lose sight of the fact that in certain matters, both civil proceedings and criminal proceedings would be maintainable.’ 12. In Rallis India Limited v. Poduru Vidya Bhushan and others (2011) 13 SCC 88 ), this Court expressed its views on this point as under:- “12. At the threshold, the High Court should not have interfered with the cognizance of the complaints having been taken by the trial court. The High Court could not have discharged the respondents of the said liability at the threshold. Unless the parties are given opportunity to lead evidence, it is not possible to come to a definite conclusion as to what was the date when the earlier partnership was dissolved and since what date the respondents ceased to be the partners of the firm.” In view of the law laid down by this Court as above, in the present case High Court exceeded its jurisdiction by giving its opinion on disputed questions of fact, before the trial court. 13. Lastly, it is contended on behalf of the respondent no.1 that it was not a case of insufficiency of fund, as such, ingredients of offence punishable under Section 138 of the N.I.Act are not made out. We are not inclined to accept the contention of learned counsel for respondent no.1. In this connection, it is sufficient to mention that in the case of Pulsive Technologies P. Ltd. vs. State of Gujarat (2014) 9 SCALE 437 ), this Court has already held that instruction of “stop payment” issued to the banker could be sufficient to make the accused liable for an offence punishable under Section 138 of the N.I. Act. Earlier also in Modi Cements Ltd. vs. Kuchil Kumar Nandi (1998) 3 SCC 249 ), this Court has clarified that if a cheque is dishonoured because of stop payment instruction even then offence punishable under Section 138 of N.I. Act gets attracted. 14. For the reasons as discussed above, we find that the High Court has committed grave error of law in quashing the criminal complaints filed by the appellant in respect of offence punishable under Section 138 of the N.I. Act, in exercise of powers under Section 482 of the Code of Criminal Procedure by accepting factual defences of the accused which were disputed ones. Such defences, if taken before trial court, after recording of the evidence, can be better appreciated. | 1[ds]10. Having heard learned counsel for the parties, we are of the view that the accused (respondent no.1) challenged the proceedings of criminal complaint cases before the High Court, taking factual defences. Whether the cheques were given as security or not, or whether there was outstanding liability or not is a question of fact which could have been determined only by the trial court after recording evidence of the parties. In our opinion, the High Court should not have expressed its view on the disputed questions of fact in a petition under Section 482 of the Code of Criminal Procedure, to come to a conclusion that the offence is not made out. The High Court has erred in law in going into the factual aspects of the matter which were not admitted between the parties. The High Court further erred in observing that Section 138(b) of N.I. Act stood uncomplied, even though the respondent no.1 (accused) had admitted that he replied the notice issued by the complainant. Also, the fact, as to whether the signatory of demand notice was authorized by the complainant company or not, could not have been examined by the High Court in its jurisdiction under Section 482 of the Code of Criminal Procedure when such plea was controverted by the complainant before it.Lastly, it is contended on behalf of the respondent no.1 that it was not a case of insufficiency of fund, as such, ingredients of offence punishable under Section 138 of the N.I.Act are not made out. We are not inclined to accept the contention of learned counsel for respondent no.1.For the reasons as discussed above, we find that the High Court has committed grave error of law in quashing the criminal complaints filed by the appellant in respect of offence punishable under Section 138 of the N.I. Act, in exercise of powers under Section 482 of the Code of Criminal Procedure by accepting factual defences of the accused which were disputed ones. Such defences, if taken before trial court, after recording of the evidence, can be better appreciated. | 1 | 2,163 | 383 | ### 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:
9. Section 140 of the Negotiable Instruments Act, 1881 prohibits what cannot be a defence in a prosecution in respect of offence punishable under Section 138 of the N.I. Act. It reads as under: “140. Defence which may not be allowed in any prosecution under section 138. –Defence which may not be allowed in any prosecution under section 138 It shall not be a defence in a prosecution of an offence under section 138 that the drawer had no reason to believe when he issued the cheque that the cheque may be dishonoured on presentment for the reasons stated in that section.” 10. Having heard learned counsel for the parties, we are of the view that the accused (respondent no.1) challenged the proceedings of criminal complaint cases before the High Court, taking factual defences. Whether the cheques were given as security or not, or whether there was outstanding liability or not is a question of fact which could have been determined only by the trial court after recording evidence of the parties. In our opinion, the High Court should not have expressed its view on the disputed questions of fact in a petition under Section 482 of the Code of Criminal Procedure, to come to a conclusion that the offence is not made out. The High Court has erred in law in going into the factual aspects of the matter which were not admitted between the parties. The High Court further erred in observing that Section 138(b) of N.I. Act stood uncomplied, even though the respondent no.1 (accused) had admitted that he replied the notice issued by the complainant. Also, the fact, as to whether the signatory of demand notice was authorized by the complainant company or not, could not have been examined by the High Court in its jurisdiction under Section 482 of the Code of Criminal Procedure when such plea was controverted by the complainant before it. 11. In Suryalakshmi Cotton Mills Limited v. Rajvir Industries Limited and others (2008) 13 SCC 678 ), this Court has made following observations explaining the parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure: - “17. The parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure is now well settled. Although it is of wide amplitude, a great deal of caution is also required in its exercise. What is required is application of the well-known legal principles involved in the matter.xxx xxx xxx22. Ordinarily, a defence of an accused although appears to be plausible should not be taken into consideration for exercise of the said jurisdiction. Yet again, the High Court at that stage would not ordinarily enter into a disputed question of fact. It, however, does not mean that documents of unimpeachable character should not be taken into consideration at any cost for the purpose of finding out as to whether continuance of the criminal proceedings would amount to an abuse of process of court or that the complaint petition is filed for causing mere harassment to the accused. While we are not oblivious of the fact that although a large number of disputes should ordinarily be determined only by the civil courts, but criminal cases are filed only for achieving the ultimate goal, namely, to force the accused to pay the amount due to the complainant immediately. The courts on the one hand should not encourage such a practice; but, on the other, cannot also travel beyond its jurisdiction to interfere with the proceeding which is otherwise genuine. The courts cannot also lose sight of the fact that in certain matters, both civil proceedings and criminal proceedings would be maintainable.’ 12. In Rallis India Limited v. Poduru Vidya Bhushan and others (2011) 13 SCC 88 ), this Court expressed its views on this point as under:- “12. At the threshold, the High Court should not have interfered with the cognizance of the complaints having been taken by the trial court. The High Court could not have discharged the respondents of the said liability at the threshold. Unless the parties are given opportunity to lead evidence, it is not possible to come to a definite conclusion as to what was the date when the earlier partnership was dissolved and since what date the respondents ceased to be the partners of the firm.” In view of the law laid down by this Court as above, in the present case High Court exceeded its jurisdiction by giving its opinion on disputed questions of fact, before the trial court. 13. Lastly, it is contended on behalf of the respondent no.1 that it was not a case of insufficiency of fund, as such, ingredients of offence punishable under Section 138 of the N.I.Act are not made out. We are not inclined to accept the contention of learned counsel for respondent no.1. In this connection, it is sufficient to mention that in the case of Pulsive Technologies P. Ltd. vs. State of Gujarat (2014) 9 SCALE 437 ), this Court has already held that instruction of “stop payment” issued to the banker could be sufficient to make the accused liable for an offence punishable under Section 138 of the N.I. Act. Earlier also in Modi Cements Ltd. vs. Kuchil Kumar Nandi (1998) 3 SCC 249 ), this Court has clarified that if a cheque is dishonoured because of stop payment instruction even then offence punishable under Section 138 of N.I. Act gets attracted. 14. For the reasons as discussed above, we find that the High Court has committed grave error of law in quashing the criminal complaints filed by the appellant in respect of offence punishable under Section 138 of the N.I. Act, in exercise of powers under Section 482 of the Code of Criminal Procedure by accepting factual defences of the accused which were disputed ones. Such defences, if taken before trial court, after recording of the evidence, can be better appreciated.
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1
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10. Having heard learned counsel for the parties, we are of the view that the accused (respondent no.1) challenged the proceedings of criminal complaint cases before the High Court, taking factual defences. Whether the cheques were given as security or not, or whether there was outstanding liability or not is a question of fact which could have been determined only by the trial court after recording evidence of the parties. In our opinion, the High Court should not have expressed its view on the disputed questions of fact in a petition under Section 482 of the Code of Criminal Procedure, to come to a conclusion that the offence is not made out. The High Court has erred in law in going into the factual aspects of the matter which were not admitted between the parties. The High Court further erred in observing that Section 138(b) of N.I. Act stood uncomplied, even though the respondent no.1 (accused) had admitted that he replied the notice issued by the complainant. Also, the fact, as to whether the signatory of demand notice was authorized by the complainant company or not, could not have been examined by the High Court in its jurisdiction under Section 482 of the Code of Criminal Procedure when such plea was controverted by the complainant before it.Lastly, it is contended on behalf of the respondent no.1 that it was not a case of insufficiency of fund, as such, ingredients of offence punishable under Section 138 of the N.I.Act are not made out. We are not inclined to accept the contention of learned counsel for respondent no.1.For the reasons as discussed above, we find that the High Court has committed grave error of law in quashing the criminal complaints filed by the appellant in respect of offence punishable under Section 138 of the N.I. Act, in exercise of powers under Section 482 of the Code of Criminal Procedure by accepting factual defences of the accused which were disputed ones. Such defences, if taken before trial court, after recording of the evidence, can be better appreciated.
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MOHD. INAM Vs. SANJAY KUMAR SINGHAL & ORS. | Judge has considered the words allowed to be occupied in Section 12 of the U.P. Act, 1972 as interpreted by this Court in the case of Harish Tandon vs. Addl. District Magistrate, Allahabad, U.P. and others (1995) 1 SCC 537 . This Court in Harish Tandon (supra), while construing the words allowed to be occupied as appearing in Section 12 of the U.P. Act, 1972, had clearly held, that the said words would be attracted if the possession of such a building had been given to a person, who was not family member of the tenant i.e. if any person other than the family member was permitted to occupy such premises in his own right. In such an event, clause (b) of sub-section (1) of Section 12, would be attracted. This Court had further held, that clause (b) of sub-section (1) of Section 12 would not be attracted when any person, who is a member of the family resides in such building either along with the landlord or the original tenant. 29. A perusal of the inspection report clearly established, that the original tenant was residing in the tenanted premises along with his son, brothers son and their families. As such, the inspection report clearly established, that no person who was not a member of the tenants family was allowed to occupy the premises in his own right. As such, the finding of the Rent Controller and Eviction Officer that the landlord had proved the case under clause (b) of sub-section (1) of Section 12 of the U.P. Act, 1972 was totally contrary to the law as interpreted by this Court in the case of Harish Tandon (supra). Not only that, the finding as recorded by the said authority was totally on misreading or ignorance of the evidence on the record. It could thus be seen, that the case would squarely fall in the category of exercising the jurisdiction either illegally or with material irregularity. In that view of the matter, the learned District Judge was wholly justified in interfering with the order impugned before him and reversing the same. 30. Though the District Judge as well as the High Court has also gone on the issue of Section 14, we do not propose to go into the said aspect of the matter, inasmuch as, we find, that the present appeal deserves to be allowed on the aforesaid grounds. 31. We find, that the learned single judge of the High Court has also erred in interfering with the well-reasoned order passed by the learned District Judge while exercising the jurisdiction of the High Court under Article 227 of the Constitution of India. 32. It is a well settled principle of law, that in the guise of exercising jurisdiction under Article 227 of the Constitution of India, the High Court cannot convert itself into a court of appeal. It is equally well settled, that the supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and seeing that they obey the law. It has been held, that though the powers under Article 227 are wide, they must be exercised sparingly and only to keep subordinate courts and Tribunals within the bounds of their authority and not to correct mere errors. Reliance in this respect can be placed on a catena of judgments of this Court including the ones in Satyanarayan Laxminarayan Hegde & Ors. vs. Millikarjun Bhavanappa Tirumale (1960) 1 SCR 890 , Bathutmal Raichand Oswal vs. Laxmibai R. Tarta & Anr. (1975) 1 SCC 858 , M/s India Pipe Fitting Co. vs. Fakruddin M. A. Baker & Anr. (1977) 4 SCC 587 , Ganpat Ladha v. Sashikant Vishnu Shinde (1978) 2 SCC 573 , Mrs. Labhkuwar Bhagwani Shaha & Ors. vs. Janardhan Mahadeo Kalan & Anr. (1982) 3 SCC 514 , Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram (1986) 4 SCC 447 , Venkatlal G. Pittie and another vs. Bright Bros (Pvt.) Ltd. (1987) 3 SCC558 , State of Maharashtra vs. Milind & Ors. (2001) 1 SCC 4 , State Through Special Cell, New Delhi vs. Navjot Sandhu Alias Afshan Guru and others (2003) 6 SCC 641 , Ranjeet Singh vs. Ravi Prakash (2004) 3 SCC 682 , Shamshad Ahmad & Ors. vs. Tilak Raj Bajaj (Deceased) Through LRs. and others (2008) 9 SCC 1 , Celina Coelho Pereira (Ms.) and others vs. Ulhas Mahabaleshwar Kholkar and others (2010) 1 SCC 217 . 33. In the present case, we are of the considered view, that the approach of the High Court in exercising the jurisdiction under Article 227 of the Constitution of India was totally erroneous. The learned District Judge while exercising his power under Section 18 of the U.P. Act, 1972 and after finding that the order passed by the Rent Controller and Eviction Officer was totally contrary to the law laid down by this Court in Harish Tandon (supra), while interpreting clause (b) of sub-section (1) of Section 12 of the U.P. Act, 1972 and also that the order passed was totally on a perverse reading of the evidence, had interfered with the said order and reversed the same. The High Court totally misinterpreting the order passed by the earlier learned judge in Writ Petition No.7(MS) of 2003 dated 23.8.2006, on an erroneous premise, held that the vacancy order could not have been challenged along with the final order. The finding is totally contrary to the law laid down by the bench of three learned judges of this Court in Achal Misra (supra), a relevant part of which was reproduced by the High Court in its earlier order dated 23.8.2006. The learned judge ignoring Achal Misra (supra), which is a binding precedent, relies on an order of one paragraph of the two learned judges of this Court while holding that the revision was not maintainable. We, therefore, are of the considered view, that the exercise of jurisdiction by the High Court under Article 227 in the present case was patently unwarranted and unjustified. | 1[ds]5. The main ground on which the writ petition has been allowed by the High Court is that, the learned District Judge had committed illegality in entertaining the joint revision filed against the vacancy order as well as the final order. The High Court in the impugned order has observed, that the judgment and order dated 23.8.2006, passed by the said High Court dismissing the writ petition had not been challenged before this Court by the respondents No. 1 and 2 therein (appellant and proforma respondent No.3 herein). The High Court further goes to observe, that the respondents therein (appellant and proforma respondent No.3 herein) had elected not to assail the vacancy order as well as the order dated 23.8.2006, passed by the High Court dismissing the said writ petition. It goes to further observe, that after dismissal of the writ petition there was no occasion for the High Court to grant liberty to the respondents therein, to avail remedy of revision, challenging the order of vacancy dated 4.6.2003. The learned Judge has gone to further observe, that the revision against the order dated 4.6.2003 was not maintainable and that the District Judge had committed patent illegality in entertaining the revision.6. We find, that the impugned judgment delivered by the High Court is not only on misreading of the law but also misreading of the facts. It will be relevant to refer to the judgment of this Court in the case of Achal Misra (supra). It will also be relevant to refer to the background in which the said judgment by the learned three Judges was rendered.9. In Achal Misra (supra), the High Court had allowed the writ petitions filed by the allottees on the ground, that the landlord not having challenged the original order notifying the vacancy then and there, was precluded from challenging the order notifying the vacancy in revision against the final order or in further challenges to it in the High Court. When the judgment of the High Court came up for consideration before the two learned Judges of this Court, it was noticed, that it could not be said that the question of vacancy, if not challenged by a separate writ petition on its notification, could not be questioned along with the final order, in the revision filed under Section 18 of the Act. It was observed, that the question of vacancy pertained to a jurisdictional fact and can be challenged in the revision filed against the allotment order passed by the District Magistrate. It was further observed, that in case it was found, that there was no vacancy, the order of allotment had to be set aside. As such, the learned two Judges referred the matter to a larger Bench. The learned three Judges in the judgment in Achal Misra (supra) observed thus:11. On the scheme of the Act, it is clear that the preliminary step is to declare a vacancy. At this stage, an enquiry has to be made including an enquiry involving at least two respectable neighbours. It is thereafter that the vacancy has to be notified and objections invited. This is followed by either dropping of the proceedings on the objections being upheld that there was no vacancy, or by allotment to a tenant on finding the vacancy, or in ordering a release of the building, in case a landlord was found entitled to have such a release under the Act. Therefore, the notifying of a vacancy is only a step in the process of making an allotment of the building to a tenant. The Act contemplates that no building should be let out by a landlord except through the process of allotment by the Rent Control Authority. Since the order notifying a vacancy is only a step in passing the final order in a proceeding under the Act regarding allotment, it is clear that the same could be challenged while challenging the final order, unless there is anything in the Act precluding such a challenge or conferring a finality to the order notifying a vacancy. It was held long ago by the Privy Council in Moheshur Sing v. Bengal Govt. [(1859) 7 Moo IA 283] (Moo IA at p. 302)We are not aware of any law or regulation prevailing in India which renders it imperative upon the suitor to appeal from every interlocutory order by which he may conceive himself aggrieved, under the penalty, if he does not so do, of forfeiting forever the benefit of the consideration of the appellate court. No authority or precedent has been cited in support of such a proposition, and we cannot conceive that anything would be more detrimental to the expeditious administration of justice than the establishment of a rule which would impose upon the suitor the necessity of so appealing; whereby on the one hand he might be harassed with endless expense and delay, and on the other inflict upon his opponent similar calamities.12. In Sheonoth v. Ramnath [(1865) 10 MIA 413] the Privy Council reiterated that a party is not bound to appeal from every interlocutory order which is a step in the procedure that leads to a final decree. It is open on appeal from such final decree to question an interlocutory order.13. This principle is recognised by Section 105(1) of the Code of Civil Procedure and reaffirmed by Order 43 Rule 1-A of the Code. The two exceptions to this rule are found in Section 97 of the Code of Civil Procedure, 1908, which provides that a preliminary decree passed in a suit could not be challenged in an appeal against the final decree based on that preliminary decree and Section 105(2) of the Code of Civil Procedure, 1908 which precludes a challenge to an order of remand at a subsequent stage while filing an appeal against the decree passed subsequent to the order of remand. All these aspects came to be considered by this Court in Satyadhyan Ghosal v. Deorajin Debi [(1960) 3 SCR 590 : AIR 1960 SC 941 . Ed.: See also(1981) 2 SCC 103, (2004) 12 SCC 754 and (2005) 3 SCC 422] wherein, after referring to the decisions of the Privy Council, it was held that an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay, an appeal was not taken, can be challenged in an appeal from a final decree or order. It was further held that a special provision was made in Section 105(2) of the Code of Civil Procedure as regards orders of remand where the order of remand itself was made appealable. Since Section 105(2) did not apply to the Privy Council and can have no application to appeals to the Supreme Court, the Privy Council and the Supreme Court could examine even the correctness of an original order of remand while considering the correctness of the decree passed subsequent to the order of remand. The same principle was reiterated in Amar Chand Butail v. Union of India [AIR 1964 SC 1658 ] and in other subsequent decisions.14. It is thus clear that an order notifying a vacancy which leads to the final order of allotment can be challenged in a proceeding taken to challenge the final order, as being an order which is a preliminary step in the process of decision-making in passing the final order. Hence, in a revision against the final order of allotment which is provided for by the Act, the order notifying the vacancy could be challenged. The decision in Ganpat Roy case[(1985) 2 SCC 307] which has disapproved the ratio of the decision in Tirlok Singh and Co.[(1976) 3 SCC 726] cannot be understood as laying down that the failure to challenge the order notifying the vacancy then and there, would result in the loss of right to the aggrieved person of challenging the notifying of vacancy itself, in a revision against the final order of allotment. It has only clarified that even the order notifying the vacancy could be immediately and independently challenged. The High Court, in our view, has misunderstood the effect of the decision of this Court in Ganpat Roy case [(1985) 2 SCC 307] and has not kept in mind the general principles of law governing such a question as expounded by the Privy Council and by this Court. It is nobodys case that there is anything in the Act corresponding either to Section 97 or to Section 105(2) of the Code of Civil Procedure, 1908 precluding a challenge in respect of an order which ultimately leads to the final order. We overrule the view taken by the Allahabad High Court in the present case and in Kunj Lata v. Xth ADJ [(1991) 2 RCJ 658] that in a revision against the final order, the order notifying the vacancy could not be challenged and that the failure to independently challenge the order notifying the vacancy would preclude a successful challenge to the allotment order itself. In fact, the person aggrieved by the order notifying the vacancy can be said to have two options available. Either to challenge the order notifying the vacancy then and there by way of a writ petition or to make the statutory challenge after a final order of allotment has been made and if he is aggrieved even thereafter, to approach the High Court. It would really be a case of election of remedies.10. It could thus be seen, that considering the scheme of the Act; the principles as recognized by Section 105(1) and Order XLIII Rule 1-A of the Code of Civil Procedure, 1908 and the various judgments of the Privy Council as well as this Court, it was held, that an interlocutory order which had not been appealed from, either because no appeal lay or even though an appeal lay, an appeal was not taken, can be challenged in an appeal from a final decree or order. It was therefore held, that an order, notifying a vacancy which leads to the final order of allotment can be challenged in a proceeding taken out to challenge the final order, as being an order which is a preliminary step in the process of decision making in passing the final order. The learned three Judges therefore held, that in a revision against the final order of allotment which is provided for by the Act, the order notifying the vacancy could be challenged. It was held, that the decision in Ganpat Roy (supra), which disapproved the ratio in Tirlok Singh (supra) cannot be understood as laying down, that the failure to challenge the order notifying the vacancy then and there, would result in the loss of right to the aggrieved person of challenging the order notifying vacancy itself, in a revision against the final order of allotment. It was held, Ganpat Roy (supra) had only clarified that even the order notifying the vacancy could be immediately and independently challenged. It was therefore held, that the High Court had misunderstood the effect of the decision of this Court in Ganpat Roy (supra) and had not kept in mind the general principles of law governing such a question as expounded by the Privy Council and this Court. It was held, that there was nothing in the Act corresponding either to Section 97 or to Section 105(2) of the Code of Civil Procedure, 1908 precluding a challenge in respect of an order which ultimately leads to the final order. It was further held, that in fact, the person aggrieved by the order notifying the vacancy can be said to have two options available, either to challenge the order notifying the vacancy then and there by way of a writ petition or to make a statutory challenge after a final order of allotment has been made and if he is aggrieved even thereafter, to approach the High Court. It was further observed, that it would really be a case of election of remedies.11. In the present case, the appellant and deceased Shabbir Ahmed, rightly, on the basis of the judgment of this Court in the case of Achal Misra (supra), had filed a writ petition being Writ Petition No.7 (MS) of 2003, challenging the order of vacancy datede learned single judge of the High Court vide order dated 23.8.2006 after specifically observing and reproducing paragraph 14 of the judgment of this Court in the case of Achal Misra (supra) observed thus:In view of the aforesaid, liberty is given to the petitioner to challenge the order dated 4 th June, 2003 after the final order is passed under Section 16 of the U.P. Act No.13 of 1972.12. In the light of this, we fail to appreciate, as to how the learned judge of the High Court in the impugned order, could have made observations in paragraph 11 thereof. The learned Judge goes to observe, that after dismissal of the writ petition there was no occasion for the said High Court to grant liberty to the respondents to avail remedy of revision challenging the order of vacancy dated 4.6.2003. It appears, that the learned judge has missed the last line in the order of the High Court dated 23.8.2006, which reads thus:Subject to aforesaid, writ petition is dismissed.13. The learned single Judge of the High Court has also failed to take into consideration that in the order dated 23.8.2006 itself, the learned judge while disposing of the earlier writ petition had referred to the law laid down by this Court in the case of Achal Misra (supra), wherein it is specifically held, that even if a party does not challenge the vacancy order by way of writ petition, it is still open to it to challenge the same order along with the final order passed under Section 16 in the revision under Section 18. However, the learned Judge, in the impugned judgment, has not even referred to the judgment of this Court in the case of Achal Misra (supra), a relevant part of which has been reproduced in the earlier order of the said High Court dated 23.8.2006.14. In the present case, though the appellant and deceased Shabbir Ahmed could have waited till passing of the final order under Section 16, they had in fact challenged the vacancy order before the High Court in a writ petition. The High Court had specifically granted them liberty to challenge the vacancy order along with the final order in view of the law laid down by this Court in the case of Achal Misra (supra) vide order dated 23.8.2006. The learned single judge of the High Court, in the impugned judgment, while holding that the revision is not tenable under Section 18 of the Act, places reliance on the judgment of this Court in the case of Narayani Devi vs. Mahendra Kr. Tripathi and others (1999) 9 SCC 61 . It is to be noticed, that the judgment on which reliance is placed by the single judge of the High Court is an order of one paragraph rendered by two Judges of this Court. The learned judge has failed in appreciating the law as laid down by this Court in Achal Misra (supra), which lays down ratio decidendi and is a binding precedent, which was very much available on the record and a part of which had been reproduced in the order dated 23.8.2006 in the earlier proceedings between the same parties.15. By relying on an order of one paragraph passed by two learned Judges of this Court and ignoring to consider the legal position of law, which is ratio decidendi and a binding precedent as laid down by three learned Judges of this Court in Achal Misra (supra), we find, that the learned single judge of the High Court has committed a gross error.16. We are, therefore, of the considered view, that the High Court has patently erred in holding, that the revision entertained by the District Judge against the vacancy order dated 4.6.2003 along with the final order of release dated 31.5.2007 was not tenable. The learned judge has totally erred in observing, that the order of the High Court dated 23.8.2006 dismissing the writ petition had attained finality since it was not challenged before this Court. The learned judge ought to have taken into consideration, that though the vacancy order was challenged in a writ petition, the High Court vide order dated 23.8.2006, while dismissing the writ petition had reserved the right of the petitioners (appellant and proforma respondent No.3 herein) before it to challenge the vacancy order along with the final order passed under Section 16. The observation of the learned judge, that the High Court in its earlier order dated 23.8.2006, could not have granted liberty to challenge the vacancy order along with the final order is also contrary to the settled principles of judicial propriety.19. It could thus be seen, that the earlier right of an appeal which was provided under Section 18 had been substituted by a remedy of revision with the limited grounds of interference. One of the grounds available is that, the District Magistrate had acted in exercise of his jurisdiction illegally or with material irregularity.23. This Court thus held, that the interference in revisional powers would be permitted only if the High Court finds that the order impugned is in violation of any statutory provision or a binding precedent or suffers from misreading of the evidence or omission to consider relevant clinching evidence or where the inference drawn from the facts proved is such that no reasonable person could arrive at or the like.24. Lastly, the Constitution Bench of this court in the case of Hindustan Petroleum Corporation Limited vs. Dilbahar Singh (2014) 9 SCC 78 had an occasion to consider the scope of revisional powers as contained in the Kerala Buildings (Lease and Rent Control) Act, 1965, T.N. Buildings (Lease and Rent Control) Act, 1960 and Haryana Urban (Control of Rent and Eviction) Act, 1973. The Court observed thus:43. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the first appellate court/first appellate authority because on reappreciation of the evidence, its view is different from the court/authority below. The consideration or examination of the evidence by the High Court in revi- sional jurisdiction under these Acts is confined to find out that finding of facts recorded by the court/authority below is according to law and does not suffer from any error of law. A finding of fact recorded by court/authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of jus- tice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is en- titled to satisfy itself as to the correct- ness or legality or propriety of any deci- sion or order impugned before it as indi- cated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to reap- preciate or reassess the evidence for coming to a different finding on facts. Re- visional power is not and cannot be equated with the power of reconsidera- tion of all questions of fact as a court of first appeal. Where the High Court is re- quired to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irreg- ularity.It can thus be seen, that the Constitution Bench has settled the position, that the revisional power does not entitle the High Court to interfere with the finding of the fact recorded by the first appellate court/first appellate authority because on reappreciation of the evidence, its view is different from the court/authority below. The consideration or examination of the evidence is confined to find out as to whether the finding of facts recorded by the court/authority below is according to law and does not suffer from any error of law. It has been held, that a finding of fact recorded by court/authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, in such a case, it is open to correction because it is not treated as a finding according to law.25. No doubt, that the observations in the aforesaid cases deal with the revisional powers to be exercised by the High Court under the special statute. This Court has observed, that in examining the legality and the propriety of the order under challenge in revision, what is required to be seen by the High Court, is whether it is in violation of any statutory provision or a binding precedent or suffers from misreading of the evidence or omission to consider relevant clinching evidence or where the inference drawn from the facts proved is such that no reasonable person could arrive at or the like. It has been held, that if such a finding is allowed to stand, it would be gross miscarriage of justice and is open to correction because it is not to be treated as a finding according to law.26. The revisional powers conferred upon the District Judge under the U.P. Act, 1972 are almost analogous with the revisional powers of the High Court that have been interpreted by this Court in the aforesaid judgments. We find, that the said principles can be aptly made applicable to the revisional powers of the District Judge under the U.P. Act, 1972. If the said principles are applied to the facts of the present case, it could be seen, that the learned District Judge was fully justified in interfering with the order passed by the Rent Controller and Eviction Officer.28. It could be seen, from the judgment and order of the District Judge, that the District Judge has considered the words allowed to be occupied in Section 12 of the U.P. Act, 1972 as interpreted by this Court in the case of Harish Tandon vs. Addl. District Magistrate, Allahabad, U.P. and others (1995) 1 SCC 537 . This Court in Harish Tandon (supra), while construing the words allowed to be occupied as appearing in Section 12 of the U.P. Act, 1972, had clearly held, that the said words would be attracted if the possession of such a building had been given to a person, who was not family member of the tenant i.e. if any person other than the family member was permitted to occupy such premises in his own right. In such an event, clause (b) of sub-section (1) of Section 12, would be attracted. This Court had further held, that clause (b) of sub-section (1) of Section 12 would not be attracted when any person, who is a member of the family resides in such building either along with the landlord or the original tenant.29. A perusal of the inspection report clearly established, that the original tenant was residing in the tenanted premises along with his son, brothers son and their families. As such, the inspection report clearly established, that no person who was not a member of the tenants family was allowed to occupy the premises in his own right. As such, the finding of the Rent Controller and Eviction Officer that the landlord had proved the case under clause (b) of sub-section (1) of Section 12 of the U.P. Act, 1972 was totally contrary to the law as interpreted by this Court in the case of Harish Tandon (supra). Not only that, the finding as recorded by the said authority was totally on misreading or ignorance of the evidence on the record. It could thus be seen, that the case would squarely fall in the category of exercising the jurisdiction either illegally or with material irregularity. In that view of the matter, the learned District Judge was wholly justified in interfering with the order impugned before him and reversing the same.30. Though the District Judge as well as the High Court has also gone on the issue of Section 14, we do not propose to go into the said aspect of the matter, inasmuch as, we find, that the present appeal deserves to be allowed on the aforesaid grounds.31. We find, that the learned single judge of the High Court has also erred in interfering with the well-reasoned order passed by the learned District Judge while exercising the jurisdiction of the High Court under Article 227 of the Constitution of India.32. It is a well settled principle of law, that in the guise of exercising jurisdiction under Article 227 of the Constitution of India, the High Court cannot convert itself into a court of appeal. It is equally well settled, that the supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and seeing that they obey the law. It has been held, that though the powers under Article 227 are wide, they must be exercised sparingly and only to keep subordinate courts and Tribunals within the bounds of their authority and not to correct mere errors. Reliance in this respect can be placed on a catena of judgments of this Court including the ones in Satyanarayan Laxminarayan Hegde & Ors. vs. Millikarjun Bhavanappa Tirumale (1960) 1 SCR 890 , Bathutmal Raichand Oswal vs. Laxmibai R. Tarta & Anr. (1975) 1 SCC 858 , M/s India Pipe Fitting Co. vs. Fakruddin M. A. Baker & Anr. (1977) 4 SCC 587 , Ganpat Ladha v. Sashikant Vishnu Shinde (1978) 2 SCC 573 , Mrs. Labhkuwar Bhagwani Shaha & Ors. vs. Janardhan Mahadeo Kalan & Anr. (1982) 3 SCC 514 , Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram (1986) 4 SCC 447 , Venkatlal G. Pittie and another vs. Bright Bros (Pvt.) Ltd. (1987) 3 SCC558 , State of Maharashtra vs. Milind & Ors. (2001) 1 SCC 4 , State Through Special Cell, New Delhi vs. Navjot Sandhu Alias Afshan Guru and others (2003) 6 SCC 641 , Ranjeet Singh vs. Ravi Prakash (2004) 3 SCC 682 , Shamshad Ahmad & Ors. vs. Tilak Raj Bajaj (Deceased) Through LRs. and others (2008) 9 SCC 1 , Celina Coelho Pereira (Ms.) and others vs. Ulhas Mahabaleshwar Kholkar and others (2010) 1 SCC 217 .33. In the present case, we are of the considered view, that the approach of the High Court in exercising the jurisdiction under Article 227 of the Constitution of India was totally erroneous. The learned District Judge while exercising his power under Section 18 of the U.P. Act, 1972 and after finding that the order passed by the Rent Controller and Eviction Officer was totally contrary to the law laid down by this Court in Harish Tandon (supra), while interpreting clause (b) of sub-section (1) of Section 12 of the U.P. Act, 1972 and also that the order passed was totally on a perverse reading of the evidence, had interfered with the said order and reversed the same. The High Court totally misinterpreting the order passed by the earlier learned judge in Writ Petition No.7(MS) of 2003 dated 23.8.2006, on an erroneous premise, held that the vacancy order could not have been challenged along with the final order. The finding is totally contrary to the law laid down by the bench of three learned judges of this Court in Achal Misra (supra), a relevant part of which was reproduced by the High Court in its earlier order dated 23.8.2006. The learned judge ignoring Achal Misra (supra), which is a binding precedent, relies on an order of one paragraph of the two learned judges of this Court while holding that the revision was not maintainable. We, therefore, are of the considered view, that the exercise of jurisdiction by the High Court under Article 227 in the present case was patently unwarranted and unjustified. | 1 | 8,668 | 5,266 | ### 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:
Judge has considered the words allowed to be occupied in Section 12 of the U.P. Act, 1972 as interpreted by this Court in the case of Harish Tandon vs. Addl. District Magistrate, Allahabad, U.P. and others (1995) 1 SCC 537 . This Court in Harish Tandon (supra), while construing the words allowed to be occupied as appearing in Section 12 of the U.P. Act, 1972, had clearly held, that the said words would be attracted if the possession of such a building had been given to a person, who was not family member of the tenant i.e. if any person other than the family member was permitted to occupy such premises in his own right. In such an event, clause (b) of sub-section (1) of Section 12, would be attracted. This Court had further held, that clause (b) of sub-section (1) of Section 12 would not be attracted when any person, who is a member of the family resides in such building either along with the landlord or the original tenant. 29. A perusal of the inspection report clearly established, that the original tenant was residing in the tenanted premises along with his son, brothers son and their families. As such, the inspection report clearly established, that no person who was not a member of the tenants family was allowed to occupy the premises in his own right. As such, the finding of the Rent Controller and Eviction Officer that the landlord had proved the case under clause (b) of sub-section (1) of Section 12 of the U.P. Act, 1972 was totally contrary to the law as interpreted by this Court in the case of Harish Tandon (supra). Not only that, the finding as recorded by the said authority was totally on misreading or ignorance of the evidence on the record. It could thus be seen, that the case would squarely fall in the category of exercising the jurisdiction either illegally or with material irregularity. In that view of the matter, the learned District Judge was wholly justified in interfering with the order impugned before him and reversing the same. 30. Though the District Judge as well as the High Court has also gone on the issue of Section 14, we do not propose to go into the said aspect of the matter, inasmuch as, we find, that the present appeal deserves to be allowed on the aforesaid grounds. 31. We find, that the learned single judge of the High Court has also erred in interfering with the well-reasoned order passed by the learned District Judge while exercising the jurisdiction of the High Court under Article 227 of the Constitution of India. 32. It is a well settled principle of law, that in the guise of exercising jurisdiction under Article 227 of the Constitution of India, the High Court cannot convert itself into a court of appeal. It is equally well settled, that the supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and seeing that they obey the law. It has been held, that though the powers under Article 227 are wide, they must be exercised sparingly and only to keep subordinate courts and Tribunals within the bounds of their authority and not to correct mere errors. Reliance in this respect can be placed on a catena of judgments of this Court including the ones in Satyanarayan Laxminarayan Hegde & Ors. vs. Millikarjun Bhavanappa Tirumale (1960) 1 SCR 890 , Bathutmal Raichand Oswal vs. Laxmibai R. Tarta & Anr. (1975) 1 SCC 858 , M/s India Pipe Fitting Co. vs. Fakruddin M. A. Baker & Anr. (1977) 4 SCC 587 , Ganpat Ladha v. Sashikant Vishnu Shinde (1978) 2 SCC 573 , Mrs. Labhkuwar Bhagwani Shaha & Ors. vs. Janardhan Mahadeo Kalan & Anr. (1982) 3 SCC 514 , Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram (1986) 4 SCC 447 , Venkatlal G. Pittie and another vs. Bright Bros (Pvt.) Ltd. (1987) 3 SCC558 , State of Maharashtra vs. Milind & Ors. (2001) 1 SCC 4 , State Through Special Cell, New Delhi vs. Navjot Sandhu Alias Afshan Guru and others (2003) 6 SCC 641 , Ranjeet Singh vs. Ravi Prakash (2004) 3 SCC 682 , Shamshad Ahmad & Ors. vs. Tilak Raj Bajaj (Deceased) Through LRs. and others (2008) 9 SCC 1 , Celina Coelho Pereira (Ms.) and others vs. Ulhas Mahabaleshwar Kholkar and others (2010) 1 SCC 217 . 33. In the present case, we are of the considered view, that the approach of the High Court in exercising the jurisdiction under Article 227 of the Constitution of India was totally erroneous. The learned District Judge while exercising his power under Section 18 of the U.P. Act, 1972 and after finding that the order passed by the Rent Controller and Eviction Officer was totally contrary to the law laid down by this Court in Harish Tandon (supra), while interpreting clause (b) of sub-section (1) of Section 12 of the U.P. Act, 1972 and also that the order passed was totally on a perverse reading of the evidence, had interfered with the said order and reversed the same. The High Court totally misinterpreting the order passed by the earlier learned judge in Writ Petition No.7(MS) of 2003 dated 23.8.2006, on an erroneous premise, held that the vacancy order could not have been challenged along with the final order. The finding is totally contrary to the law laid down by the bench of three learned judges of this Court in Achal Misra (supra), a relevant part of which was reproduced by the High Court in its earlier order dated 23.8.2006. The learned judge ignoring Achal Misra (supra), which is a binding precedent, relies on an order of one paragraph of the two learned judges of this Court while holding that the revision was not maintainable. We, therefore, are of the considered view, that the exercise of jurisdiction by the High Court under Article 227 in the present case was patently unwarranted and unjustified.
### Response:
1
### Explanation:
be occupied in Section 12 of the U.P. Act, 1972 as interpreted by this Court in the case of Harish Tandon vs. Addl. District Magistrate, Allahabad, U.P. and others (1995) 1 SCC 537 . This Court in Harish Tandon (supra), while construing the words allowed to be occupied as appearing in Section 12 of the U.P. Act, 1972, had clearly held, that the said words would be attracted if the possession of such a building had been given to a person, who was not family member of the tenant i.e. if any person other than the family member was permitted to occupy such premises in his own right. In such an event, clause (b) of sub-section (1) of Section 12, would be attracted. This Court had further held, that clause (b) of sub-section (1) of Section 12 would not be attracted when any person, who is a member of the family resides in such building either along with the landlord or the original tenant.29. A perusal of the inspection report clearly established, that the original tenant was residing in the tenanted premises along with his son, brothers son and their families. As such, the inspection report clearly established, that no person who was not a member of the tenants family was allowed to occupy the premises in his own right. As such, the finding of the Rent Controller and Eviction Officer that the landlord had proved the case under clause (b) of sub-section (1) of Section 12 of the U.P. Act, 1972 was totally contrary to the law as interpreted by this Court in the case of Harish Tandon (supra). Not only that, the finding as recorded by the said authority was totally on misreading or ignorance of the evidence on the record. It could thus be seen, that the case would squarely fall in the category of exercising the jurisdiction either illegally or with material irregularity. In that view of the matter, the learned District Judge was wholly justified in interfering with the order impugned before him and reversing the same.30. Though the District Judge as well as the High Court has also gone on the issue of Section 14, we do not propose to go into the said aspect of the matter, inasmuch as, we find, that the present appeal deserves to be allowed on the aforesaid grounds.31. We find, that the learned single judge of the High Court has also erred in interfering with the well-reasoned order passed by the learned District Judge while exercising the jurisdiction of the High Court under Article 227 of the Constitution of India.32. It is a well settled principle of law, that in the guise of exercising jurisdiction under Article 227 of the Constitution of India, the High Court cannot convert itself into a court of appeal. It is equally well settled, that the supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and seeing that they obey the law. It has been held, that though the powers under Article 227 are wide, they must be exercised sparingly and only to keep subordinate courts and Tribunals within the bounds of their authority and not to correct mere errors. Reliance in this respect can be placed on a catena of judgments of this Court including the ones in Satyanarayan Laxminarayan Hegde & Ors. vs. Millikarjun Bhavanappa Tirumale (1960) 1 SCR 890 , Bathutmal Raichand Oswal vs. Laxmibai R. Tarta & Anr. (1975) 1 SCC 858 , M/s India Pipe Fitting Co. vs. Fakruddin M. A. Baker & Anr. (1977) 4 SCC 587 , Ganpat Ladha v. Sashikant Vishnu Shinde (1978) 2 SCC 573 , Mrs. Labhkuwar Bhagwani Shaha & Ors. vs. Janardhan Mahadeo Kalan & Anr. (1982) 3 SCC 514 , Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram (1986) 4 SCC 447 , Venkatlal G. Pittie and another vs. Bright Bros (Pvt.) Ltd. (1987) 3 SCC558 , State of Maharashtra vs. Milind & Ors. (2001) 1 SCC 4 , State Through Special Cell, New Delhi vs. Navjot Sandhu Alias Afshan Guru and others (2003) 6 SCC 641 , Ranjeet Singh vs. Ravi Prakash (2004) 3 SCC 682 , Shamshad Ahmad & Ors. vs. Tilak Raj Bajaj (Deceased) Through LRs. and others (2008) 9 SCC 1 , Celina Coelho Pereira (Ms.) and others vs. Ulhas Mahabaleshwar Kholkar and others (2010) 1 SCC 217 .33. In the present case, we are of the considered view, that the approach of the High Court in exercising the jurisdiction under Article 227 of the Constitution of India was totally erroneous. The learned District Judge while exercising his power under Section 18 of the U.P. Act, 1972 and after finding that the order passed by the Rent Controller and Eviction Officer was totally contrary to the law laid down by this Court in Harish Tandon (supra), while interpreting clause (b) of sub-section (1) of Section 12 of the U.P. Act, 1972 and also that the order passed was totally on a perverse reading of the evidence, had interfered with the said order and reversed the same. The High Court totally misinterpreting the order passed by the earlier learned judge in Writ Petition No.7(MS) of 2003 dated 23.8.2006, on an erroneous premise, held that the vacancy order could not have been challenged along with the final order. The finding is totally contrary to the law laid down by the bench of three learned judges of this Court in Achal Misra (supra), a relevant part of which was reproduced by the High Court in its earlier order dated 23.8.2006. The learned judge ignoring Achal Misra (supra), which is a binding precedent, relies on an order of one paragraph of the two learned judges of this Court while holding that the revision was not maintainable. We, therefore, are of the considered view, that the exercise of jurisdiction by the High Court under Article 227 in the present case was patently unwarranted and unjustified.
|
Messrs Om Parkash Gita Devi and Company and Others Vs. Food Corporation of India | in these appeals. Mr. R.K. Jain, learned Senior Counsel appearing for the appellant contends that the order of the learned Appellate Judge as well as of the High Court reducing the rate of interest is wholly illegal and untenable in law. His contention is that once the Arbitrator has power to Award interest and the Award has been made Rule of the Court, there was no reason why the Appellate Court should reduce the rate -3- of interest particularly when the transaction between the parties, having regard to the background in which the lease was entered into between the appellant and the Food Corporation of India, was in the nature of commercial transaction.Mr. R.U. Upadhyay, learned counsel appearing for the Food Corporation of India contends that the transaction was not a commercial transaction and therefore the Arbitrator ought not to have awarded interest at the rate of 18 per cent per annum. As such the appellate court was right in reducing the rate of interest from 18 per cent to 6 per cent per annum. On these contentions, the only question that arises for our consideration is what is the appropriate rate of interest that could be awarded to the appellant having regard to the nature of the transaction. It is not in dispute that the Arbitrator had power to award interest. It is only the rate of interest that is in controversy. It cannot be denied that on account of premature termination of lease by the FCI, the appellant had to bear the burden of interest at the rate of 18 per cent - the rate which is being charged by the bank on the amount of loan obtained by -4- him. It is also brought to our notice that four suits were filed by the bank against the appellant, the rate of interest claimed is 17 and 1/2 per cent with quarterly rest which will be even more than 18 per cent per annum. Under Section 3 of the Interest Act, 1978, the Arbitrator has power to Award interest on the amount awarded by him in view of the definition in Section 2(a) of the said Act. The power of the Arbitrator extends to awarding interest at the rate not exceeding the current rate of interest. The expression "current rate of interest" has been defined in clause (b) of Section 2 to mean the higher of the maximum rate of interest that may be paid on different classes of deposits (other than those maintained in savings account or those maintained by the charitable or religious institutions) by different classes of scheduled banks in accordance with the directions given or issued to banding companies generally by the Reserve Bank of India under the Banking Regulation Act, 1949. It must be noticed that the current rate of interest is the maximum that could be awarded by the Arbitrator. That is not the rate which should invariably be awarded in every case where interest at the maximum rate is awarded, specific reasons must be given to justify the same in the circumstances of the case.On the facts of this case, the claim which was allowed against the respondent relates to recovery of arrears of rent. Though -5- in the circumstances in which the transaction of loan was entered into, resulted in the appellant bearing burden of higher rate of interest yet they do not render the agreement of lease between the appellants and the respondents, a commercial transactions. All those circumstances will only be relevant in coming to the conclusion about the rate of interest which should be awarded by the Arbitrator. Having heard the learned counsel on the question of current rate of interest we are of the view that in the facts and circumstances of these appeals, the rate of interest at 12 per cent per annum would meet the ends of justice. We accordingly modify the order under challenge by allowing the appeals. We make no order as to costs. ..........................J (Syed Shah Mohammed Quadri) New Delhi, ..........................J November 30, 2000. (S.N. Phukan) IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. ........OF 2000 (Arising out of SLP(C)Nos.8705-8706 of 2000 Dharam Pal Appellant (s) Versus Executive Engineer & Anr. Respondent (s) ORDER Leave is granted. The dispute in these appeals relates to rate of interest awarded by the Arbitrator, which was reduced by the High Court in revision. The appellant is a Government Contractor. He carried on the work of construction of road. The disputes between the Executive Engineer, State of Haryana and the appellant was referred to the Arbitrator. By Award dated 5th April, 1996, the Arbitrator awarded a sum of Rs.3, 72, 169 toegether with interest at 18 per cent per annum for the period which covered pre-reference, pendente lite and future. Learned Civil Judge, Senior Division made the Award Rule of the Court rejecting the objection of the respondent on November 16, 1996. The learned District Judge, Kaithal on appeal by the Executive Engineer - respondent herein disallowed the interest for pre-reference -2- period and reduced the interest to 15 per cent per annum pendente lite. However, he confirmed the rate of interest at 18 per cent for the period from the date of the Award to the date of the payment. Against that order the respondent filed revision petition before the High Court. By its order dated 8.9.1999, the High Court disallowed the interest pendente lite having regard to the term of the agreement between the parties, namely, clause 25 which is extracted at pages 2 and 3 of the order of the High Court.Insofar as the future interest is concerned, the High Court granted simple interest at the rate of 12 per cent per annum under Section 29 of the Arbitraqtion Act. On the facts and in the circumstances of these cases we are unable to say that granting 12 per cent interest per annum by the High Court is unreasonable so as to warrant our interference in these appeals. | 0[ds]It is not in dispute that the Arbitrator had power to award interest. It is only the rate of interest that is in controversy. It cannot be denied that on account of premature termination of lease by the FCI, the appellant had to bear the burden of interest at the rate of 18 per centthe rate which is being charged by the bank on the amount of loan obtained byhim. It is also brought to our notice that four suits were filed by the bank against the appellant, the rate of interest claimed is 17 and 1/2 per cent with quarterly rest which will be even more than 18 per cent per annum. Under Section 3 of the Interest Act, 1978, the Arbitrator has power to Award interest on the amount awarded by him in view of the definition in Section 2(a) of the said Act. The power of the Arbitrator extends to awarding interest at the rate not exceeding the current rate of interest. The expression "current rate of interest" has been defined in clause (b) of Section 2 to mean the higher of the maximum rate of interest that may be paid on different classes of deposits (other than those maintained in savings account or those maintained by the charitable or religious institutions) by different classes of scheduled banks in accordance with the directions given or issued to banding companies generally by the Reserve Bank of India under the Banking Regulation Act, 1949. It must be noticed that the current rate of interest is the maximum that could be awarded by the Arbitrator. That is not the rate which should invariably be awarded in every case where interest at the maximum rate is awarded, specific reasons must be given to justify the same in the circumstances of the case.On the facts of this case, the claim which was allowed against the respondent relates to recovery of arrears of rent. Thoughin the circumstances in which the transaction of loan was entered into, resulted in the appellant bearing burden of higher rate of interest yet they do not render the agreement of lease between the appellants and the respondents, a commercial transactions. All those circumstances will only be relevant in coming to the conclusion about the rate of interest which should be awarded by theappellant is a Government Contractor. He carried on the work of construction of road. The disputes between the Executive Engineer, State of Haryana and the appellant was referred to the Arbitrator. By Award dated 5th April, 1996, the Arbitrator awarded a sum of Rs.3, 72, 169 toegether with interest at 18 per cent per annum for the period which coveredpendente lite and future. Learned Civil Judge, Senior Division made the Award Rule of the Court rejecting the objection of the respondent on November 16, 1996. The learned District Judge, Kaithal on appeal by the Executive Engineerrespondent herein disallowed the interest forod and reduced the interest to 15 per cent per annum pendente lite. However, he confirmed the rate of interest at 18 per cent for the period from the date of the Award to the date of the payment. Against that order the respondent filed revision petition before the High Court. By its order dated 8.9.1999, the High Court disallowed the interest pendente lite having regard to the term of the agreement between the parties, namely, clause 25 which is extracted at pages 2 and 3 of the order of the High Court.Insofar as the future interest is concerned, the High Court granted simple interest at the rate of 12 per cent per annum under Section 29 of the Arbitraqtion Act. On the facts and in the circumstances of these cases we are unable to say that granting 12 per cent interest per annum by the High Court is unreasonable so as to warrant our interference in these | 0 | 1,527 | 697 | ### Instruction:
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in these appeals. Mr. R.K. Jain, learned Senior Counsel appearing for the appellant contends that the order of the learned Appellate Judge as well as of the High Court reducing the rate of interest is wholly illegal and untenable in law. His contention is that once the Arbitrator has power to Award interest and the Award has been made Rule of the Court, there was no reason why the Appellate Court should reduce the rate -3- of interest particularly when the transaction between the parties, having regard to the background in which the lease was entered into between the appellant and the Food Corporation of India, was in the nature of commercial transaction.Mr. R.U. Upadhyay, learned counsel appearing for the Food Corporation of India contends that the transaction was not a commercial transaction and therefore the Arbitrator ought not to have awarded interest at the rate of 18 per cent per annum. As such the appellate court was right in reducing the rate of interest from 18 per cent to 6 per cent per annum. On these contentions, the only question that arises for our consideration is what is the appropriate rate of interest that could be awarded to the appellant having regard to the nature of the transaction. It is not in dispute that the Arbitrator had power to award interest. It is only the rate of interest that is in controversy. It cannot be denied that on account of premature termination of lease by the FCI, the appellant had to bear the burden of interest at the rate of 18 per cent - the rate which is being charged by the bank on the amount of loan obtained by -4- him. It is also brought to our notice that four suits were filed by the bank against the appellant, the rate of interest claimed is 17 and 1/2 per cent with quarterly rest which will be even more than 18 per cent per annum. Under Section 3 of the Interest Act, 1978, the Arbitrator has power to Award interest on the amount awarded by him in view of the definition in Section 2(a) of the said Act. The power of the Arbitrator extends to awarding interest at the rate not exceeding the current rate of interest. The expression "current rate of interest" has been defined in clause (b) of Section 2 to mean the higher of the maximum rate of interest that may be paid on different classes of deposits (other than those maintained in savings account or those maintained by the charitable or religious institutions) by different classes of scheduled banks in accordance with the directions given or issued to banding companies generally by the Reserve Bank of India under the Banking Regulation Act, 1949. It must be noticed that the current rate of interest is the maximum that could be awarded by the Arbitrator. That is not the rate which should invariably be awarded in every case where interest at the maximum rate is awarded, specific reasons must be given to justify the same in the circumstances of the case.On the facts of this case, the claim which was allowed against the respondent relates to recovery of arrears of rent. Though -5- in the circumstances in which the transaction of loan was entered into, resulted in the appellant bearing burden of higher rate of interest yet they do not render the agreement of lease between the appellants and the respondents, a commercial transactions. All those circumstances will only be relevant in coming to the conclusion about the rate of interest which should be awarded by the Arbitrator. Having heard the learned counsel on the question of current rate of interest we are of the view that in the facts and circumstances of these appeals, the rate of interest at 12 per cent per annum would meet the ends of justice. We accordingly modify the order under challenge by allowing the appeals. We make no order as to costs. ..........................J (Syed Shah Mohammed Quadri) New Delhi, ..........................J November 30, 2000. (S.N. Phukan) IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. ........OF 2000 (Arising out of SLP(C)Nos.8705-8706 of 2000 Dharam Pal Appellant (s) Versus Executive Engineer & Anr. Respondent (s) ORDER Leave is granted. The dispute in these appeals relates to rate of interest awarded by the Arbitrator, which was reduced by the High Court in revision. The appellant is a Government Contractor. He carried on the work of construction of road. The disputes between the Executive Engineer, State of Haryana and the appellant was referred to the Arbitrator. By Award dated 5th April, 1996, the Arbitrator awarded a sum of Rs.3, 72, 169 toegether with interest at 18 per cent per annum for the period which covered pre-reference, pendente lite and future. Learned Civil Judge, Senior Division made the Award Rule of the Court rejecting the objection of the respondent on November 16, 1996. The learned District Judge, Kaithal on appeal by the Executive Engineer - respondent herein disallowed the interest for pre-reference -2- period and reduced the interest to 15 per cent per annum pendente lite. However, he confirmed the rate of interest at 18 per cent for the period from the date of the Award to the date of the payment. Against that order the respondent filed revision petition before the High Court. By its order dated 8.9.1999, the High Court disallowed the interest pendente lite having regard to the term of the agreement between the parties, namely, clause 25 which is extracted at pages 2 and 3 of the order of the High Court.Insofar as the future interest is concerned, the High Court granted simple interest at the rate of 12 per cent per annum under Section 29 of the Arbitraqtion Act. On the facts and in the circumstances of these cases we are unable to say that granting 12 per cent interest per annum by the High Court is unreasonable so as to warrant our interference in these appeals.
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It is not in dispute that the Arbitrator had power to award interest. It is only the rate of interest that is in controversy. It cannot be denied that on account of premature termination of lease by the FCI, the appellant had to bear the burden of interest at the rate of 18 per centthe rate which is being charged by the bank on the amount of loan obtained byhim. It is also brought to our notice that four suits were filed by the bank against the appellant, the rate of interest claimed is 17 and 1/2 per cent with quarterly rest which will be even more than 18 per cent per annum. Under Section 3 of the Interest Act, 1978, the Arbitrator has power to Award interest on the amount awarded by him in view of the definition in Section 2(a) of the said Act. The power of the Arbitrator extends to awarding interest at the rate not exceeding the current rate of interest. The expression "current rate of interest" has been defined in clause (b) of Section 2 to mean the higher of the maximum rate of interest that may be paid on different classes of deposits (other than those maintained in savings account or those maintained by the charitable or religious institutions) by different classes of scheduled banks in accordance with the directions given or issued to banding companies generally by the Reserve Bank of India under the Banking Regulation Act, 1949. It must be noticed that the current rate of interest is the maximum that could be awarded by the Arbitrator. That is not the rate which should invariably be awarded in every case where interest at the maximum rate is awarded, specific reasons must be given to justify the same in the circumstances of the case.On the facts of this case, the claim which was allowed against the respondent relates to recovery of arrears of rent. Thoughin the circumstances in which the transaction of loan was entered into, resulted in the appellant bearing burden of higher rate of interest yet they do not render the agreement of lease between the appellants and the respondents, a commercial transactions. All those circumstances will only be relevant in coming to the conclusion about the rate of interest which should be awarded by theappellant is a Government Contractor. He carried on the work of construction of road. The disputes between the Executive Engineer, State of Haryana and the appellant was referred to the Arbitrator. By Award dated 5th April, 1996, the Arbitrator awarded a sum of Rs.3, 72, 169 toegether with interest at 18 per cent per annum for the period which coveredpendente lite and future. Learned Civil Judge, Senior Division made the Award Rule of the Court rejecting the objection of the respondent on November 16, 1996. The learned District Judge, Kaithal on appeal by the Executive Engineerrespondent herein disallowed the interest forod and reduced the interest to 15 per cent per annum pendente lite. However, he confirmed the rate of interest at 18 per cent for the period from the date of the Award to the date of the payment. Against that order the respondent filed revision petition before the High Court. By its order dated 8.9.1999, the High Court disallowed the interest pendente lite having regard to the term of the agreement between the parties, namely, clause 25 which is extracted at pages 2 and 3 of the order of the High Court.Insofar as the future interest is concerned, the High Court granted simple interest at the rate of 12 per cent per annum under Section 29 of the Arbitraqtion Act. On the facts and in the circumstances of these cases we are unable to say that granting 12 per cent interest per annum by the High Court is unreasonable so as to warrant our interference in these
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BHAVEN CONSTRUCTION THROUGH AUTHORISED SIGNATORY PREMJIBHAI K. SHAH Vs. EXECUTIVE ENGINEER SARDAR SAROVAR NARMADA NIGAM LTD.& ANR | 227 is broad and pervasive, however, the High Court should not have used its inherent power to interject the arbitral process at this stage. It is brought to our notice that subsequent to the impugned order of the sole arbitrator, a final award was rendered by him on merits, which is challenged by the Respondent No. 1 in a separate Section 34 application, which is pending. 20. Viewed from a different perspective, the arbitral process is strictly conditioned upon time limitation and modeled on the principle of unbreakability. This Court in P. Radha Bai v. P. Ashok Kumar, (2019) 13 SCC 445, observed: 36.3. Third, Section 34(3) reflects the principle of unbreakability. Dr Peter Binder in International Commercial Arbitration and Conciliation in UNCITRAL Model Law Jurisdictions, 2nd Edn., observed: An application for setting aside an award can only be made during the three months following the date on which the party making the application has received the award. Only if a party has made a request for correction or interpretation of the award under Article 33 does the time-limit of three months begin after the tribunal has disposed of the request. This exception from the three-month time-limit was subject to criticism in the working group due to fears that it could be used as a delaying tactics. However, although an unbreakable time-limit for applications for setting aside was sought as being desirable for the sake of certainty and expediency the prevailing view was that the words ought to be retained since they presented the reasonable consequence of Article 33. According to this unbreakability of time-limit and true to the certainty and expediency of the arbitral awards, any grounds for setting aside the award that emerge after the three- month time-limit has expired cannot be raised. 37. Extending Section 17 of the Limitation Act would go contrary to the principle of unbreakability enshrined under Section 34(3) of the Arbitration Act. (emphasis supplied) If the Courts are allowed to interfere with the arbitral process beyond the ambit of the enactment, then the efficiency of the process will be diminished. 21. The High Court did not appreciate the limitations under Articles 226 and 227 of the Constitution and reasoned that the Appellant had undertaken to appoint an arbitrator unilaterally, thereby rendering the Respondent No. 1 remediless. However, a plain reading of the arbitration agreement points to the fact that the Appellant herein had actually acted in accordance with the procedure laid down without any mala fides. 22. Respondent No. 1 did not take legal recourse against the appointment of the sole arbitrator, and rather submitted themselves before the tribunal to adjudicate on the jurisdiction issue as well as on the merits. In this situation, the Respondent No. 1 has to endure the natural consequences of submitting themselves to the jurisdiction of the sole arbitrator, which can be challenged, through an application under Section 34. It may be noted that in the present case, the award has already been passed during the pendency of this appeal, and the Respondent No. 1 has already preferred a challenge under Section 34 to the same. Respondent No. 1 has not been able to show any exceptional circumstance, which mandates the exercise of jurisdiction under Articles 226 and 227 of the Constitution. 23. The Division Bench further opined that the contract between the parties was in the nature of a works contract as it held that the manufacturing of bricks, as required under the contract, was only an ancillary obligation while the primary obligation on the Appellant was to supply the bricks. The Division Bench therefore held that the Gujarat Act holds the field, and not the Arbitration Act. 24. The Gujarat Act was enacted in 1992 with the object to provide for the constitution of a tribunal to arbitrate disputes particularly arising from works contract to which the State Government or a public undertaking is a party. A works contract is defined under Section 2(k) of the Gujarat Act. The definition includes within itself a contract for supply of goods relating to the execution of any of the works specified under the section. However, a plain reading of the contract between the parties indicates that it was for both manufacturing as well as supply of bricks. Importantly, a contract for manufacture simpliciter is not a works contract under the definition provided under Section 2(k). The pertinent question therefore is whether the present contract, which is composite in nature, falls within the ambit of a works contract under Section 2(k) of the Gujarat Act. This is a question that requires contractual interpretation, and is a matter of evidence, especially when both parties have taken contradictory stands regarding this issue. It is a settled law that the interpretation of contracts in such cases shall generally not be done in the writ jurisdiction. Further, the mere fact that the Gujarat Act might apply may not be sufficient for the writ courts to entertain the plea of Respondent No. 1 to challenge the ruling of the arbitrator under Section 16 of the Arbitration Act. 25. It must be noted that Section 16 of the Arbitration Act, necessarily mandates that the issue of jurisdiction must be dealt first by the tribunal, before the Court examines the same under Section 34. Respondent No. 1 is therefore not left remediless, and has statutorily been provided a chance of appeal. In Deep Industries case (supra), this Court observed as follows: 22. One other feature of this case is of some importance. As stated herein above, on 09.05.2018, a Section 16 application had been dismissed by the learned Arbitrator in which substantially the same contention which found favour with the High Court was taken up. The drill of Section 16 of the Act is that where a Section 16 application is dismissed, no appeal is provided and the challenge to the Section 16 application being dismissed must await the passing of a final award at which stage it may be raised under Section 34. (emphasis supplied) | 1[ds]12. The Arbitration Act itself gives various procedures and forums to challenge the appointment of an arbitrator. The framework clearly portrays an intention to address most of the issues within the ambit of the Act itself, without there being scope for any extra statutory mechanism to provide just and fair solutions.13. Any party can enter into an arbitration agreement for resolving any disputes capable of being arbitrable. Parties, while entering into such agreements, need to fulfill the basic ingredients provided under Section 7 of the Arbitration Act. Arbitration being a creature of contract, gives a flexible framework for the parties to agree for their own procedure with minimalistic stipulations under the Arbitration Act.14. If parties fail to refer a matter to arbitration or to appoint an arbitrator in accordance with the procedure agreed by them, then a party can take recourse for court assistance under Section 8 or 11 of the Arbitration Act.15. In this context, we may state that the Appellant acted in accordance with the procedure laid down under the agreement to unilaterally appoint a sole arbitrator, without Respondent No. 1 mounting a judicial challenge at that stage. Respondent No. 1 then appeared before the sole arbitrator and challenged the jurisdiction of the sole arbitrator, in terms of Section 16(2) of the Arbitration Act.16. Thereafter, Respondent No. 1 chose to impugn the order passed by the arbitrator under Section 16(2) of the Arbitration Act through a petition under Article 226/227 of the Indian Constitution. In the usual course, the Arbitration Act provides for a mechanism of challenge under Section 34. The opening phase of Section 34 reads as Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub- section (3). The use of term only as occurring under the provision serves two purposes of making the enactment a complete code and lay down the procedure.18. In this context we may observe M/s. Deep Industries Limited v. Oil and Natural Gas Corporation Limited, (2019) SCC Online SC 1602, wherein interplay of Section 5 of the Arbitration Act and Article 227 of the Constitution was analyzed as under:15. Most significant of all is the non- obstante clause contained in Section 5 which states that notwithstanding anything contained in any other law, in matters that arise under Part I of the Arbitration Act, no judicial authority shall intervene except where so provided in this Part. Section 37 grants a constricted right of first appeal against certain judgments and orders and no others. Further, the statutory mandate also provides for one bite at the cherry, and interdicts a second appeal being filed (See Section 37(2) of the Act)16. This being the case, there is no doubt whatsoever that if petitions were to be filed under Articles 226/227 of the Constitution against orders passed in appeals under Section 37, the entire arbitral process would be derailed and would not come to fruition for many years. At the same time, we cannot forget that Article 227 is a constitutional provision which remains untouched by the non-obstante clause of Section 5 of the Act. In these circumstances, what is important to note is that though petitions can be filed under Article 227 against judgments allowing or dismissing first appeals under Section 37 of the Act, yet the High Court would be extremely circumspect in interfering with the same, taking into account the statutory policy as adumbrated by us herein above so that interference is restricted to orders that are passed which are patently lacking in inherent jurisdiction.19. In the instant case, Respondent No. 1 has not been able to show exceptional circumstance or bad faith on the part of the Appellant, to invoke the remedy under Article 227 of the Constitution. No doubt the ambit of Article 227 is broad and pervasive, however, the High Court should not have used its inherent power to interject the arbitral process at this stage. It is brought to our notice that subsequent to the impugned order of the sole arbitrator, a final award was rendered by him on merits, which is challenged by the Respondent No. 1 in a separate Section 34 application, which is pending.20. Viewed from a different perspective, the arbitral process is strictly conditioned upon time limitation and modeled on the principle of unbreakability. This Court in P. Radha Bai v. P. Ashok Kumar, (2019) 13 SCC 445, observed:36.3. Third, Section 34(3) reflects the principle of unbreakability. Dr Peter Binder in International Commercial Arbitration and Conciliation in UNCITRAL Model Law Jurisdictions, 2nd Edn., observed:An application for setting aside an award can only be made during the three months following the date on which the party making the application has received the award. Only if a party has made a request for correction or interpretation of the award under Article 33 does the time-limit of three months begin after the tribunal has disposed of the request. This exception from the three-month time-limit was subject to criticism in the working group due to fears that it could be used as a delaying tactics. However, although an unbreakable time-limit for applications for setting aside was sought as being desirable for the sake of certainty and expediency the prevailing view was that the words ought to be retained since they presented the reasonable consequence of Article 33.According to this unbreakability of time-limit and true to the certainty and expediency of the arbitral awards, any grounds for setting aside the award that emerge after the three- month time-limit has expired cannot be raised.37. Extending Section 17 of the Limitation Act would go contrary to the principle of unbreakability enshrined under Section 34(3) of the Arbitration Act.If the Courts are allowed to interfere with the arbitral process beyond the ambit of the enactment, then the efficiency of the process will be diminished.21. The High Court did not appreciate the limitations under Articles 226 and 227 of the Constitution and reasoned that the Appellant had undertaken to appoint an arbitrator unilaterally, thereby rendering the Respondent No. 1 remediless. However, a plain reading of the arbitration agreement points to the fact that the Appellant herein had actually acted in accordance with the procedure laid down without any mala fides.22. Respondent No. 1 did not take legal recourse against the appointment of the sole arbitrator, and rather submitted themselves before the tribunal to adjudicate on the jurisdiction issue as well as on the merits. In this situation, the Respondent No. 1 has to endure the natural consequences of submitting themselves to the jurisdiction of the sole arbitrator, which can be challenged, through an application under Section 34. It may be noted that in the present case, the award has already been passed during the pendency of this appeal, and the Respondent No. 1 has already preferred a challenge under Section 34 to the same. Respondent No. 1 has not been able to show any exceptional circumstance, which mandates the exercise of jurisdiction under Articles 226 and 227 of the Constitution.23. The Division Bench further opined that the contract between the parties was in the nature of a works contract as it held that the manufacturing of bricks, as required under the contract, was only an ancillary obligation while the primary obligation on the Appellant was to supply the bricks. The Division Bench therefore held that the Gujarat Act holds the field, and not the Arbitration Act.However, a plain reading of the contract between the parties indicates that it was for both manufacturing as well as supply of bricks. Importantly, a contract for manufacture simpliciter is not a works contract under the definition provided under Section 2(k).This is a question that requires contractual interpretation, and is a matter of evidence, especially when both parties have taken contradictory stands regarding this issue. It is a settled law that the interpretation of contracts in such cases shall generally not be done in the writ jurisdiction. Further, the mere fact that the Gujarat Act might apply may not be sufficient for the writ courts to entertain the plea of Respondent No. 1 to challenge the ruling of the arbitrator under Section 16 of the Arbitration Act.25. It must be noted that Section 16 of the Arbitration Act, necessarily mandates that the issue of jurisdiction must be dealt first by the tribunal, before the Court examines the same under Section 34. Respondent No. 1 is therefore not left remediless, and has statutorily been provided a chance of appeal. In Deep Industries case (supra), this Court observed as follows:22. One other feature of this case is of some importance. As stated herein above, on 09.05.2018, a Section 16 application had been dismissed by the learned Arbitrator in which substantially the same contention which found favour with the High Court was taken up. The drill of Section 16 of the Act is that where a Section 16 application is dismissed, no appeal is provided and the challenge to the Section 16 application being dismissed must await the passing of a final award at which stage it may be raised under Section 34. | 1 | 3,754 | 1,681 | ### Instruction:
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227 is broad and pervasive, however, the High Court should not have used its inherent power to interject the arbitral process at this stage. It is brought to our notice that subsequent to the impugned order of the sole arbitrator, a final award was rendered by him on merits, which is challenged by the Respondent No. 1 in a separate Section 34 application, which is pending. 20. Viewed from a different perspective, the arbitral process is strictly conditioned upon time limitation and modeled on the principle of unbreakability. This Court in P. Radha Bai v. P. Ashok Kumar, (2019) 13 SCC 445, observed: 36.3. Third, Section 34(3) reflects the principle of unbreakability. Dr Peter Binder in International Commercial Arbitration and Conciliation in UNCITRAL Model Law Jurisdictions, 2nd Edn., observed: An application for setting aside an award can only be made during the three months following the date on which the party making the application has received the award. Only if a party has made a request for correction or interpretation of the award under Article 33 does the time-limit of three months begin after the tribunal has disposed of the request. This exception from the three-month time-limit was subject to criticism in the working group due to fears that it could be used as a delaying tactics. However, although an unbreakable time-limit for applications for setting aside was sought as being desirable for the sake of certainty and expediency the prevailing view was that the words ought to be retained since they presented the reasonable consequence of Article 33. According to this unbreakability of time-limit and true to the certainty and expediency of the arbitral awards, any grounds for setting aside the award that emerge after the three- month time-limit has expired cannot be raised. 37. Extending Section 17 of the Limitation Act would go contrary to the principle of unbreakability enshrined under Section 34(3) of the Arbitration Act. (emphasis supplied) If the Courts are allowed to interfere with the arbitral process beyond the ambit of the enactment, then the efficiency of the process will be diminished. 21. The High Court did not appreciate the limitations under Articles 226 and 227 of the Constitution and reasoned that the Appellant had undertaken to appoint an arbitrator unilaterally, thereby rendering the Respondent No. 1 remediless. However, a plain reading of the arbitration agreement points to the fact that the Appellant herein had actually acted in accordance with the procedure laid down without any mala fides. 22. Respondent No. 1 did not take legal recourse against the appointment of the sole arbitrator, and rather submitted themselves before the tribunal to adjudicate on the jurisdiction issue as well as on the merits. In this situation, the Respondent No. 1 has to endure the natural consequences of submitting themselves to the jurisdiction of the sole arbitrator, which can be challenged, through an application under Section 34. It may be noted that in the present case, the award has already been passed during the pendency of this appeal, and the Respondent No. 1 has already preferred a challenge under Section 34 to the same. Respondent No. 1 has not been able to show any exceptional circumstance, which mandates the exercise of jurisdiction under Articles 226 and 227 of the Constitution. 23. The Division Bench further opined that the contract between the parties was in the nature of a works contract as it held that the manufacturing of bricks, as required under the contract, was only an ancillary obligation while the primary obligation on the Appellant was to supply the bricks. The Division Bench therefore held that the Gujarat Act holds the field, and not the Arbitration Act. 24. The Gujarat Act was enacted in 1992 with the object to provide for the constitution of a tribunal to arbitrate disputes particularly arising from works contract to which the State Government or a public undertaking is a party. A works contract is defined under Section 2(k) of the Gujarat Act. The definition includes within itself a contract for supply of goods relating to the execution of any of the works specified under the section. However, a plain reading of the contract between the parties indicates that it was for both manufacturing as well as supply of bricks. Importantly, a contract for manufacture simpliciter is not a works contract under the definition provided under Section 2(k). The pertinent question therefore is whether the present contract, which is composite in nature, falls within the ambit of a works contract under Section 2(k) of the Gujarat Act. This is a question that requires contractual interpretation, and is a matter of evidence, especially when both parties have taken contradictory stands regarding this issue. It is a settled law that the interpretation of contracts in such cases shall generally not be done in the writ jurisdiction. Further, the mere fact that the Gujarat Act might apply may not be sufficient for the writ courts to entertain the plea of Respondent No. 1 to challenge the ruling of the arbitrator under Section 16 of the Arbitration Act. 25. It must be noted that Section 16 of the Arbitration Act, necessarily mandates that the issue of jurisdiction must be dealt first by the tribunal, before the Court examines the same under Section 34. Respondent No. 1 is therefore not left remediless, and has statutorily been provided a chance of appeal. In Deep Industries case (supra), this Court observed as follows: 22. One other feature of this case is of some importance. As stated herein above, on 09.05.2018, a Section 16 application had been dismissed by the learned Arbitrator in which substantially the same contention which found favour with the High Court was taken up. The drill of Section 16 of the Act is that where a Section 16 application is dismissed, no appeal is provided and the challenge to the Section 16 application being dismissed must await the passing of a final award at which stage it may be raised under Section 34. (emphasis supplied)
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clause of Section 5 of the Act. In these circumstances, what is important to note is that though petitions can be filed under Article 227 against judgments allowing or dismissing first appeals under Section 37 of the Act, yet the High Court would be extremely circumspect in interfering with the same, taking into account the statutory policy as adumbrated by us herein above so that interference is restricted to orders that are passed which are patently lacking in inherent jurisdiction.19. In the instant case, Respondent No. 1 has not been able to show exceptional circumstance or bad faith on the part of the Appellant, to invoke the remedy under Article 227 of the Constitution. No doubt the ambit of Article 227 is broad and pervasive, however, the High Court should not have used its inherent power to interject the arbitral process at this stage. It is brought to our notice that subsequent to the impugned order of the sole arbitrator, a final award was rendered by him on merits, which is challenged by the Respondent No. 1 in a separate Section 34 application, which is pending.20. Viewed from a different perspective, the arbitral process is strictly conditioned upon time limitation and modeled on the principle of unbreakability. This Court in P. Radha Bai v. P. Ashok Kumar, (2019) 13 SCC 445, observed:36.3. Third, Section 34(3) reflects the principle of unbreakability. Dr Peter Binder in International Commercial Arbitration and Conciliation in UNCITRAL Model Law Jurisdictions, 2nd Edn., observed:An application for setting aside an award can only be made during the three months following the date on which the party making the application has received the award. Only if a party has made a request for correction or interpretation of the award under Article 33 does the time-limit of three months begin after the tribunal has disposed of the request. This exception from the three-month time-limit was subject to criticism in the working group due to fears that it could be used as a delaying tactics. However, although an unbreakable time-limit for applications for setting aside was sought as being desirable for the sake of certainty and expediency the prevailing view was that the words ought to be retained since they presented the reasonable consequence of Article 33.According to this unbreakability of time-limit and true to the certainty and expediency of the arbitral awards, any grounds for setting aside the award that emerge after the three- month time-limit has expired cannot be raised.37. Extending Section 17 of the Limitation Act would go contrary to the principle of unbreakability enshrined under Section 34(3) of the Arbitration Act.If the Courts are allowed to interfere with the arbitral process beyond the ambit of the enactment, then the efficiency of the process will be diminished.21. The High Court did not appreciate the limitations under Articles 226 and 227 of the Constitution and reasoned that the Appellant had undertaken to appoint an arbitrator unilaterally, thereby rendering the Respondent No. 1 remediless. However, a plain reading of the arbitration agreement points to the fact that the Appellant herein had actually acted in accordance with the procedure laid down without any mala fides.22. Respondent No. 1 did not take legal recourse against the appointment of the sole arbitrator, and rather submitted themselves before the tribunal to adjudicate on the jurisdiction issue as well as on the merits. In this situation, the Respondent No. 1 has to endure the natural consequences of submitting themselves to the jurisdiction of the sole arbitrator, which can be challenged, through an application under Section 34. It may be noted that in the present case, the award has already been passed during the pendency of this appeal, and the Respondent No. 1 has already preferred a challenge under Section 34 to the same. Respondent No. 1 has not been able to show any exceptional circumstance, which mandates the exercise of jurisdiction under Articles 226 and 227 of the Constitution.23. The Division Bench further opined that the contract between the parties was in the nature of a works contract as it held that the manufacturing of bricks, as required under the contract, was only an ancillary obligation while the primary obligation on the Appellant was to supply the bricks. The Division Bench therefore held that the Gujarat Act holds the field, and not the Arbitration Act.However, a plain reading of the contract between the parties indicates that it was for both manufacturing as well as supply of bricks. Importantly, a contract for manufacture simpliciter is not a works contract under the definition provided under Section 2(k).This is a question that requires contractual interpretation, and is a matter of evidence, especially when both parties have taken contradictory stands regarding this issue. It is a settled law that the interpretation of contracts in such cases shall generally not be done in the writ jurisdiction. Further, the mere fact that the Gujarat Act might apply may not be sufficient for the writ courts to entertain the plea of Respondent No. 1 to challenge the ruling of the arbitrator under Section 16 of the Arbitration Act.25. It must be noted that Section 16 of the Arbitration Act, necessarily mandates that the issue of jurisdiction must be dealt first by the tribunal, before the Court examines the same under Section 34. Respondent No. 1 is therefore not left remediless, and has statutorily been provided a chance of appeal. In Deep Industries case (supra), this Court observed as follows:22. One other feature of this case is of some importance. As stated herein above, on 09.05.2018, a Section 16 application had been dismissed by the learned Arbitrator in which substantially the same contention which found favour with the High Court was taken up. The drill of Section 16 of the Act is that where a Section 16 application is dismissed, no appeal is provided and the challenge to the Section 16 application being dismissed must await the passing of a final award at which stage it may be raised under Section 34.
|
State Of Haryana Vs. Suresh | do not mean what they say lies heavily on the party who alleges it. He must advance something which clearly shows that the grammatical construction would be repugnant to the intention of the Act or lead to some manifest absurdity (See Craies on Statute Law, Seventh ed. page 83-85). In the well known treatise - Principles of Statutory Interpretation by Justice G.P. Singh, the learned author has enunciated the same principle that the words of the Statute are first understood in their natural, ordinary or popular sense and phrases and sentences are construed according to their grammatical meaning, unless that leads to some absurdity or unless there is something in the context or in the object of the Statute to suggest the contrary (See the Chapter - The Rule of Literal Construction -page 78 - Ninth ed.). This Court has also followed this principle right from the beginning. In Jugalkishore Saraf v. Raw Cotton Co. Ltd. AIR 1955 SC 376 , S.R. Das, J. said: - "The cardinal rule of construction of statutes is to read the statute literally, that is, by giving to the words used by the legislature their ordinary, natural and grammatical meaning. If, however, such a reading leads to absurdity and the words are susceptible of another meaning the Court may adopt the same. But if no such alternative construction is possible, the Court must adopt the ordinary rule of literal interpretation." 13. A catena of subsequent decisions have followed the same line. It, therefore, becomes necessary to look to dictionaries to ascertain the correct meaning of the word "person". 14. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act. 15. The scope and ambit of Section 50 of the Act was examined in considerable detail by a Constitution Bench in State of Punjab v. Baldev Singh (1999 (6) SCC 172)and para 12 of the reports is being reproduced below : "12. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted." 16. The Bench recorded its conclusion in para 57 of the reports and sub-paras (1), (2), (3) and (6) are being reproduced below : "57. On the basis of the reasoning and discussion above, the following conclusions arise:(1) That when an empowered officer or a duly authorized officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under Sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing.(2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused.(3) That a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a gazetted officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act.Xx xx xx(6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but hold that failure to inform the person concerned of his right as emanating from Sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law." 17. These aspects were highlighted in State of H.P. v. Pawan Kumar (2005 (4) SCC 350). 18. In view of the aforesaid judgment by a three Judge Bench of this Court, the acquittal, as directed by the High Court, is clearly unsustainable. However, we find that other points were urged in support of the appeal before the High Court, but the High Court allowed the appeal filed by the accused only on the ground of non-compliance of Section 50 of the Act. It did not examine the other grounds of challenge. | 1[ds]ts were highlighted in State of H.P. v. Pawan Kumar (2005 (4) SCCview of the aforesaid judgment by a three Judge Bench of this Court, the acquittal, as directed by the High Court, is clearly unsustainable. However, we find that other points were urged in support of the appeal before the High Court, but the High Court allowed the appeal filed by the accused only on the ground of non-compliance of Section 50 of the Act. It did not examine the other grounds of challenge. | 1 | 2,288 | 101 | ### 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:
do not mean what they say lies heavily on the party who alleges it. He must advance something which clearly shows that the grammatical construction would be repugnant to the intention of the Act or lead to some manifest absurdity (See Craies on Statute Law, Seventh ed. page 83-85). In the well known treatise - Principles of Statutory Interpretation by Justice G.P. Singh, the learned author has enunciated the same principle that the words of the Statute are first understood in their natural, ordinary or popular sense and phrases and sentences are construed according to their grammatical meaning, unless that leads to some absurdity or unless there is something in the context or in the object of the Statute to suggest the contrary (See the Chapter - The Rule of Literal Construction -page 78 - Ninth ed.). This Court has also followed this principle right from the beginning. In Jugalkishore Saraf v. Raw Cotton Co. Ltd. AIR 1955 SC 376 , S.R. Das, J. said: - "The cardinal rule of construction of statutes is to read the statute literally, that is, by giving to the words used by the legislature their ordinary, natural and grammatical meaning. If, however, such a reading leads to absurdity and the words are susceptible of another meaning the Court may adopt the same. But if no such alternative construction is possible, the Court must adopt the ordinary rule of literal interpretation." 13. A catena of subsequent decisions have followed the same line. It, therefore, becomes necessary to look to dictionaries to ascertain the correct meaning of the word "person". 14. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act. 15. The scope and ambit of Section 50 of the Act was examined in considerable detail by a Constitution Bench in State of Punjab v. Baldev Singh (1999 (6) SCC 172)and para 12 of the reports is being reproduced below : "12. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted." 16. The Bench recorded its conclusion in para 57 of the reports and sub-paras (1), (2), (3) and (6) are being reproduced below : "57. On the basis of the reasoning and discussion above, the following conclusions arise:(1) That when an empowered officer or a duly authorized officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under Sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing.(2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused.(3) That a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a gazetted officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act.Xx xx xx(6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but hold that failure to inform the person concerned of his right as emanating from Sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law." 17. These aspects were highlighted in State of H.P. v. Pawan Kumar (2005 (4) SCC 350). 18. In view of the aforesaid judgment by a three Judge Bench of this Court, the acquittal, as directed by the High Court, is clearly unsustainable. However, we find that other points were urged in support of the appeal before the High Court, but the High Court allowed the appeal filed by the accused only on the ground of non-compliance of Section 50 of the Act. It did not examine the other grounds of challenge.
### Response:
1
### Explanation:
ts were highlighted in State of H.P. v. Pawan Kumar (2005 (4) SCCview of the aforesaid judgment by a three Judge Bench of this Court, the acquittal, as directed by the High Court, is clearly unsustainable. However, we find that other points were urged in support of the appeal before the High Court, but the High Court allowed the appeal filed by the accused only on the ground of non-compliance of Section 50 of the Act. It did not examine the other grounds of challenge.
|
Babudas Vs. State Of M.P | A-1. Then the learned counsel appearing for the appellant had very seriously contended that the evidence led by the prosecution in regard to recovery of knife, money and wrist-watch is so artificial that the same cannot be accepted by any reasonable person. Having perused the evidence of PW-17, one of the Panchayatdars for recovery and the Investigating officer, PW-20, we find sufficient force in this argument of learned counsel for the appellant. It is seen that the shop of PW-17 is about 1-1/2 kms. away from the Police Station in question, there were many other shops and houses in-between, still the I.O. decided to specifically look for and get PW-17 as a Panchayatdar for the recovery. From the evidence of PW-17, we notice that undoubtedly, he is a stock witness who has been appearing as a witness for recovery on behalf of the prosecution even as far back as the year 1965, we will have to be very cautious in accepting his evidence. The manner in which the alleged recovery is made also creates a lot of doubt in our mind. It is seen from the evidence led by the prosecution that at every place where the accused took the Panchayatdars and the Police, according to the prosecution witnesses themselves, there were thousands of people present witnessing the recovery. We find it extremely difficult that such a large gathering would be present at the recovery unless people in the village had already come to know that there is going to be such a recovery. Then the manner in which the currency notes were allegedly kept in a damp area under a rock also creates doubt in our mind since no prudent man would conceal currency notes in such a place. Then there is a very serious doubt about the recovery of the wrist watch. It is stated that on 28.5.1988 the wrist watch in question was recovered from the place where it was hidden and was seized and sealed in an envelope to which PWs. 10, 17 and 19 appended their signatures. But surprisingly, when the sealed packet was opened in the court, it was found that the watch was wrapped in a newspaper dated 3.6.1988 - a newspaper published about 6 days after the date of seizure. PW-10 who is the I.O. when confronted with this contradiction, has pleaded his inability to given any explanation in regard to this. However, the prosecution through the evidence of PW-11 has made an effort to explain away this serious infirmity in the recovery of the wrist watch. This witness says that the sealed packet which contained the wrist watch was opened in his presence on 15.6.1988 on which date he was posted as a Naib Tehsildar in the Tehsil office for the purpose of getting the watch identified by PW-10, Dinesh Shukla. But for this opening of the packet which was sealed on 28.5.1988, PWs. 17 and 19 who had put their signatures were not parties nor are they parties for resealing of this watch in the newspaper of 3.6.1988. If that be so, we fail to understand what evidentiary value can be attached to the recovery of the wrist watch. The very purpose for which the wrist watch was packed and sealed with signatures of PWs.17 and 19 on 28.5.1988 is lost by the opening of the packet in their absence. The prosecution cannot prove that the wrist watch recovered on 28.5.1988 at the instance of A-2 is the same watch which was produced in court during the trial. Our suspicion in regard to the genuineness of the recoveries gets compounded by this factum of opening of the sealed articles in the absence of original Panchayatdars. In the present case, the inability of the I.O. to explain the change in packaging makes the seizure further doubtful. This serious error in the background of the fact that even though many independent witnesses were available as Panchayatdars for the recovery, the prosecutions act of using an admittedly stock witness like PW-17 and the manner and the place in which these recovered objects were allegedly concealed, throws great suspicion in the alleged recoveries which is foundation of the prosecution case against the appellant. The argument of learned counsel for the respondent in regard to the presumption that could be drawn from the alleged recovery as to the crime committed by the person from whom such recovery is made or his false alibi as supported by the decisions relied on by her, will be of no assistance to the prosecution case. A presumption under Section 114(a) could be drawn only if the factum of recovery is proved beyond reasonable doubt which in this case we have held is not done because the recoveries are highly doubtful. Therefore, on such doubtful recoveries, a presumption as to the guilt of the accused cannot be drawn. We agree with the learned counsel for the respondent-State that in a case of circumstantial evidence, a false alibi set up by the accused would be a link in the chain of circumstances as held by this Court in the case of Mani Kumar Thapa (supra) but then it cannot be the sole link or the sole circumstance based on which a conviction could be passed. In the instant case we have held that a substantial part of the prosecution case which involves both A-1 and A-2 has been disbelieved by the High Court so far as A-1 is concerned and the conviction was confirmed as against A-2 by the High Court based on the recoveries made and the said recovery having been disbelieved by us, the sole circumstance against the appellant remains to be his alibi which in our opinion, is not sufficient for basing a conviction. We are of the considered opinion that the prosecution had failed to prove beyond reasonable doubt that this appellant is responsible for the murder of the deceased, and for throwing his body is the lake, consequently, the charge under Section 201 should also fail. | 1[ds]In the present case, the inability of the I.O. to explain the change in packaging makes the seizure further doubtful. This serious error in the background of the fact that even though many independent witnesses were available as Panchayatdars for the recovery, the prosecutions act of using an admittedly stock witness likeand the manner and the place in which these recovered objects were allegedly concealed, throws great suspicion in the alleged recoveries which is foundation of the prosecution case against the appellant. The argument of learned counsel for the respondent in regard to the presumption that could be drawn from the alleged recovery as to the crime committed by the person from whom such recovery is made or his false alibi as supported by the decisions relied on by her, will be of no assistance to the prosecution case. A presumption under Section 114(a) could be drawn only if the factum of recovery is proved beyond reasonable doubt which in this case we have held is not done because the recoveries are highly doubtful. Therefore, on such doubtful recoveries, a presumption as to the guilt of the accused cannot be drawn. We agree with the learned counsel for thethat in a case of circumstantial evidence, a false alibi set up by the accused would be a link in the chain of circumstances as held by this Court in the case of Mani Kumar Thapa (supra) but then it cannot be the sole link or the sole circumstance based on which a conviction could be passed. In the instant case we have held that a substantial part of the prosecution case which involves bothhas been disbelieved by the High Court so far asis concerned and the conviction was confirmed as againstby the High Court based on the recoveries made and the said recovery having been disbelieved by us, the sole circumstance against the appellant remains to be his alibi which in our opinion, is not sufficient for basing a conviction. We are of the considered opinion that the prosecution had failed to prove beyond reasonable doubt that this appellant is responsible for the murder of the deceased, and for throwing his body is the lake, consequently, the charge under Section 201 should alsoreally do not find from the facts of this case how that could be a motive; be it forto do away with the deceased. It is the prosecution case itself that the deceased andwere good friends and when he asked for a loan of Rs. 30,000 the deceased willingly agreed to give him Rs. 25,000/which he had. If that be so, we do not find any reason whatsoever for any one of these accused to kill the deceased after having received the said amount. We also do not see the reasoning behind the prosecution case thathaving received a sum of Rs. 25,000 why he would give the money to the sister ofand a part of it tohimself without retaining any substantial part with him. From the evidence on record we notice that it waswho has spoken in regard to this monetary transaction which from his own evidence we find difficult to believe. It is his case that on 18.5.1988, i.e. 3 days prior to the alleged murder,met the deceased at the pan shop where deceased andhad gone andhad taken the deceased away fromwhich distance according to the evidence ofhimself is aboutmeters. If that be so, we fail to understand howcould have really overheard the conversation between the deceased andAt any rate, we notice that the High Court has not accepted this part of the prosecution case in regard to | 1 | 2,897 | 648 | ### 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:
A-1. Then the learned counsel appearing for the appellant had very seriously contended that the evidence led by the prosecution in regard to recovery of knife, money and wrist-watch is so artificial that the same cannot be accepted by any reasonable person. Having perused the evidence of PW-17, one of the Panchayatdars for recovery and the Investigating officer, PW-20, we find sufficient force in this argument of learned counsel for the appellant. It is seen that the shop of PW-17 is about 1-1/2 kms. away from the Police Station in question, there were many other shops and houses in-between, still the I.O. decided to specifically look for and get PW-17 as a Panchayatdar for the recovery. From the evidence of PW-17, we notice that undoubtedly, he is a stock witness who has been appearing as a witness for recovery on behalf of the prosecution even as far back as the year 1965, we will have to be very cautious in accepting his evidence. The manner in which the alleged recovery is made also creates a lot of doubt in our mind. It is seen from the evidence led by the prosecution that at every place where the accused took the Panchayatdars and the Police, according to the prosecution witnesses themselves, there were thousands of people present witnessing the recovery. We find it extremely difficult that such a large gathering would be present at the recovery unless people in the village had already come to know that there is going to be such a recovery. Then the manner in which the currency notes were allegedly kept in a damp area under a rock also creates doubt in our mind since no prudent man would conceal currency notes in such a place. Then there is a very serious doubt about the recovery of the wrist watch. It is stated that on 28.5.1988 the wrist watch in question was recovered from the place where it was hidden and was seized and sealed in an envelope to which PWs. 10, 17 and 19 appended their signatures. But surprisingly, when the sealed packet was opened in the court, it was found that the watch was wrapped in a newspaper dated 3.6.1988 - a newspaper published about 6 days after the date of seizure. PW-10 who is the I.O. when confronted with this contradiction, has pleaded his inability to given any explanation in regard to this. However, the prosecution through the evidence of PW-11 has made an effort to explain away this serious infirmity in the recovery of the wrist watch. This witness says that the sealed packet which contained the wrist watch was opened in his presence on 15.6.1988 on which date he was posted as a Naib Tehsildar in the Tehsil office for the purpose of getting the watch identified by PW-10, Dinesh Shukla. But for this opening of the packet which was sealed on 28.5.1988, PWs. 17 and 19 who had put their signatures were not parties nor are they parties for resealing of this watch in the newspaper of 3.6.1988. If that be so, we fail to understand what evidentiary value can be attached to the recovery of the wrist watch. The very purpose for which the wrist watch was packed and sealed with signatures of PWs.17 and 19 on 28.5.1988 is lost by the opening of the packet in their absence. The prosecution cannot prove that the wrist watch recovered on 28.5.1988 at the instance of A-2 is the same watch which was produced in court during the trial. Our suspicion in regard to the genuineness of the recoveries gets compounded by this factum of opening of the sealed articles in the absence of original Panchayatdars. In the present case, the inability of the I.O. to explain the change in packaging makes the seizure further doubtful. This serious error in the background of the fact that even though many independent witnesses were available as Panchayatdars for the recovery, the prosecutions act of using an admittedly stock witness like PW-17 and the manner and the place in which these recovered objects were allegedly concealed, throws great suspicion in the alleged recoveries which is foundation of the prosecution case against the appellant. The argument of learned counsel for the respondent in regard to the presumption that could be drawn from the alleged recovery as to the crime committed by the person from whom such recovery is made or his false alibi as supported by the decisions relied on by her, will be of no assistance to the prosecution case. A presumption under Section 114(a) could be drawn only if the factum of recovery is proved beyond reasonable doubt which in this case we have held is not done because the recoveries are highly doubtful. Therefore, on such doubtful recoveries, a presumption as to the guilt of the accused cannot be drawn. We agree with the learned counsel for the respondent-State that in a case of circumstantial evidence, a false alibi set up by the accused would be a link in the chain of circumstances as held by this Court in the case of Mani Kumar Thapa (supra) but then it cannot be the sole link or the sole circumstance based on which a conviction could be passed. In the instant case we have held that a substantial part of the prosecution case which involves both A-1 and A-2 has been disbelieved by the High Court so far as A-1 is concerned and the conviction was confirmed as against A-2 by the High Court based on the recoveries made and the said recovery having been disbelieved by us, the sole circumstance against the appellant remains to be his alibi which in our opinion, is not sufficient for basing a conviction. We are of the considered opinion that the prosecution had failed to prove beyond reasonable doubt that this appellant is responsible for the murder of the deceased, and for throwing his body is the lake, consequently, the charge under Section 201 should also fail.
### Response:
1
### Explanation:
In the present case, the inability of the I.O. to explain the change in packaging makes the seizure further doubtful. This serious error in the background of the fact that even though many independent witnesses were available as Panchayatdars for the recovery, the prosecutions act of using an admittedly stock witness likeand the manner and the place in which these recovered objects were allegedly concealed, throws great suspicion in the alleged recoveries which is foundation of the prosecution case against the appellant. The argument of learned counsel for the respondent in regard to the presumption that could be drawn from the alleged recovery as to the crime committed by the person from whom such recovery is made or his false alibi as supported by the decisions relied on by her, will be of no assistance to the prosecution case. A presumption under Section 114(a) could be drawn only if the factum of recovery is proved beyond reasonable doubt which in this case we have held is not done because the recoveries are highly doubtful. Therefore, on such doubtful recoveries, a presumption as to the guilt of the accused cannot be drawn. We agree with the learned counsel for thethat in a case of circumstantial evidence, a false alibi set up by the accused would be a link in the chain of circumstances as held by this Court in the case of Mani Kumar Thapa (supra) but then it cannot be the sole link or the sole circumstance based on which a conviction could be passed. In the instant case we have held that a substantial part of the prosecution case which involves bothhas been disbelieved by the High Court so far asis concerned and the conviction was confirmed as againstby the High Court based on the recoveries made and the said recovery having been disbelieved by us, the sole circumstance against the appellant remains to be his alibi which in our opinion, is not sufficient for basing a conviction. We are of the considered opinion that the prosecution had failed to prove beyond reasonable doubt that this appellant is responsible for the murder of the deceased, and for throwing his body is the lake, consequently, the charge under Section 201 should alsoreally do not find from the facts of this case how that could be a motive; be it forto do away with the deceased. It is the prosecution case itself that the deceased andwere good friends and when he asked for a loan of Rs. 30,000 the deceased willingly agreed to give him Rs. 25,000/which he had. If that be so, we do not find any reason whatsoever for any one of these accused to kill the deceased after having received the said amount. We also do not see the reasoning behind the prosecution case thathaving received a sum of Rs. 25,000 why he would give the money to the sister ofand a part of it tohimself without retaining any substantial part with him. From the evidence on record we notice that it waswho has spoken in regard to this monetary transaction which from his own evidence we find difficult to believe. It is his case that on 18.5.1988, i.e. 3 days prior to the alleged murder,met the deceased at the pan shop where deceased andhad gone andhad taken the deceased away fromwhich distance according to the evidence ofhimself is aboutmeters. If that be so, we fail to understand howcould have really overheard the conversation between the deceased andAt any rate, we notice that the High Court has not accepted this part of the prosecution case in regard to
|
C.P.Subhash Vs. Insp.Of Police Chennai | of quashing the proceeding at any stage. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code... 9. Decisions of this Court in V.Y. Jose and Anr. v. State of Gujarat and Anr. (2009) 3 SCC 78 and Harshendra Kumar D. v. Rebatilata Koley etc. (2011) 3 SCC 351 reiterate the above legal position. 10. Coming to the case at hand it cannot be said that the allegations made in the complaint do not constitute any offence or that the same do not prima facie allege the complicity of the persons accused of committing the same. The complaint filed by the appellant sets out the relevant facts and alleges that the documents have been forged and fabricated only to be used as genuine to make a fraudulent and illegal claim over the land owned by complainant. The following passage from the complaint is relevant in this regard: .....Thus evidently these two sale deeds being produced by GWL i.e. 1551/1922 dated: 10th March 1922 and 1575/1922 dated 27th June 1922 are forged and fabricated and after making the false documents they were used as genuine to make fraudulent and illegal claim over our lands and go grab them. The representatives of GWL Properties with dishonest motive of grabbing our lands having indulged in committing forgery and fabrication of documents and with the aid of the forged documents are constantly attempting to criminally trespass into our lawful possessed lands and have been threatening and intimidating the staffs of our company in an illegal manner endangering life and damaging the land. The representatives of GWL properties also have been making false statements to the Government Revenue Authorities by producing these forged and fabricated documents with dishonest intention to enter their name in the Government Records. The present Director-in-charge and responsible for the affairs of the GWL Properties Limited is Mrs. V.M. Chhabria and all the above mentioned acts and commission of offences have been committed with the knowledge of the Directors of GWL Properties Ltd., and connivance for which they are liable. Mr. A.V.L. Ramprasad Varma representing M/s GWL Properties Limited has registered a civil suit in the District Court, Chengalpet using the forged documents. Mr. Satish, Manager (Legal), Mr. Shanmuga Sundram, Senior Manager, (Administration), have assisted in fabricating the forged documents and used the same to get patta from Tahsildar, Tambaram, thus cheating the Govt. Officials. Hence we request you to register the complaint and to investigate and take action in accordance with law as against the said company M/s GWL Property Limited represented by Mr. Satish, Manager (Legal) Mr. Shanmudga Sundaram, Senior Manager (Administration), A.V.L. Ramprasad Varma, Directors, and their accomplice who have connived and indulged in fabricating and forging documents for the purpose of illegally grabbing our lands and for all other offences committed by them. 11. Equally untenable is the view taken by the High Court that the bar contained in Section 195(1)(b)(ii) could be attracted to the case at hand. In Iqbal Singh Marwahs case (supra) a Constitution Bench of this Court had authoritatively declared that Section 195(1)(b)(ii) Cr.P.C. was attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidencein any court and during the time the same was in custodia legis. This Court while taking that view approved the ratio of an earlier decision in Sachida Nand Singh & Anr. v. State of Bihar & Anr. (1998) 2 SCC 493 where this Court held: 12. It would be a strained thinking that any offence involving forgery of a document if committed far outside the precincts of the Court and long before its production in the Court, could also be treated as one affecting administration of justice merely because that document later reached the court records. xx xx xx xx 23. The sequitur of the above discussion is that the bar contained in Section 195(1)(b)(ii) of the Code is not applicable to a case where forgery of the document was committed before the document was produced in a court. 12. Mr. Venugopal was, therefore, correct in contending that the bar contained in Section 195 against taking of cognizance was not attracted to the case at hand as the sale deeds relied upon by GWL for claiming title to the property in question had not been forged while they were in custodia legis. 13. In the light of the above, the High Court was wrong in quashing the FIR on the ground that the allegations did not constitute an offence even when the same were taken to be true in their entirety. It was also, in our view, wrong for the High Court to hold that the respondents were not the makers of the documents or that the filing of a civil suit based on the same would not constitute an offence. Whether or not the respondents had forged the documents and if so what offence was committed by the respondents was a matter for investigation which could not be prejudged or quashed by the High Court in exercise of its powers under Section 482 of Cr.P.C. or under Article 226 of the Constitution of India. | 1[ds]10. Coming to the case at hand it cannot be said that the allegations made in the complaint do not constitute any offence or that the same do not prima facie allege the complicity of the persons accused of committing the same. The complaint filed by the appellant sets out the relevant facts and alleges that the documents have been forged and fabricated only to be used as genuine to make a fraudulent and illegal claim over the land owned by complainant11. Equally untenable is the view taken by the High Court that the bar contained in Section 195(1)(b)(ii) could be attracted to the case at hand. In Iqbal Singh Marwahs case (supra) a Constitution Bench of this Court had authoritatively declared that Section 195(1)(b)(ii) Cr.P.C. was attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidencein any court and during the time the same was in custodia legis12. Mr. Venugopal was, therefore, correct in contending that the bar contained in Section 195 against taking of cognizance was not attracted to the case at hand as the sale deeds relied upon by GWL for claiming title to the property in question had not been forged while they were in custodia legis13. In the light of the above, the High Court was wrong in quashing the FIR on the ground that the allegations did not constitute an offence even when the same were taken to be true in their entirety. It was also, in our view, wrong for the High Court to hold that the respondents were not the makers of the documents or that the filing of a civil suit based on the same would not constitute an offence. Whether or not the respondents had forged the documents and if so what offence was committed by the respondents was a matter for investigation which could not be prejudged or quashed by the High Court in exercise of its powers under Section 482 of Cr.P.C. or under Article 226 of the Constitution of India. | 1 | 2,485 | 391 | ### 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:
of quashing the proceeding at any stage. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code... 9. Decisions of this Court in V.Y. Jose and Anr. v. State of Gujarat and Anr. (2009) 3 SCC 78 and Harshendra Kumar D. v. Rebatilata Koley etc. (2011) 3 SCC 351 reiterate the above legal position. 10. Coming to the case at hand it cannot be said that the allegations made in the complaint do not constitute any offence or that the same do not prima facie allege the complicity of the persons accused of committing the same. The complaint filed by the appellant sets out the relevant facts and alleges that the documents have been forged and fabricated only to be used as genuine to make a fraudulent and illegal claim over the land owned by complainant. The following passage from the complaint is relevant in this regard: .....Thus evidently these two sale deeds being produced by GWL i.e. 1551/1922 dated: 10th March 1922 and 1575/1922 dated 27th June 1922 are forged and fabricated and after making the false documents they were used as genuine to make fraudulent and illegal claim over our lands and go grab them. The representatives of GWL Properties with dishonest motive of grabbing our lands having indulged in committing forgery and fabrication of documents and with the aid of the forged documents are constantly attempting to criminally trespass into our lawful possessed lands and have been threatening and intimidating the staffs of our company in an illegal manner endangering life and damaging the land. The representatives of GWL properties also have been making false statements to the Government Revenue Authorities by producing these forged and fabricated documents with dishonest intention to enter their name in the Government Records. The present Director-in-charge and responsible for the affairs of the GWL Properties Limited is Mrs. V.M. Chhabria and all the above mentioned acts and commission of offences have been committed with the knowledge of the Directors of GWL Properties Ltd., and connivance for which they are liable. Mr. A.V.L. Ramprasad Varma representing M/s GWL Properties Limited has registered a civil suit in the District Court, Chengalpet using the forged documents. Mr. Satish, Manager (Legal), Mr. Shanmuga Sundram, Senior Manager, (Administration), have assisted in fabricating the forged documents and used the same to get patta from Tahsildar, Tambaram, thus cheating the Govt. Officials. Hence we request you to register the complaint and to investigate and take action in accordance with law as against the said company M/s GWL Property Limited represented by Mr. Satish, Manager (Legal) Mr. Shanmudga Sundaram, Senior Manager (Administration), A.V.L. Ramprasad Varma, Directors, and their accomplice who have connived and indulged in fabricating and forging documents for the purpose of illegally grabbing our lands and for all other offences committed by them. 11. Equally untenable is the view taken by the High Court that the bar contained in Section 195(1)(b)(ii) could be attracted to the case at hand. In Iqbal Singh Marwahs case (supra) a Constitution Bench of this Court had authoritatively declared that Section 195(1)(b)(ii) Cr.P.C. was attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidencein any court and during the time the same was in custodia legis. This Court while taking that view approved the ratio of an earlier decision in Sachida Nand Singh & Anr. v. State of Bihar & Anr. (1998) 2 SCC 493 where this Court held: 12. It would be a strained thinking that any offence involving forgery of a document if committed far outside the precincts of the Court and long before its production in the Court, could also be treated as one affecting administration of justice merely because that document later reached the court records. xx xx xx xx 23. The sequitur of the above discussion is that the bar contained in Section 195(1)(b)(ii) of the Code is not applicable to a case where forgery of the document was committed before the document was produced in a court. 12. Mr. Venugopal was, therefore, correct in contending that the bar contained in Section 195 against taking of cognizance was not attracted to the case at hand as the sale deeds relied upon by GWL for claiming title to the property in question had not been forged while they were in custodia legis. 13. In the light of the above, the High Court was wrong in quashing the FIR on the ground that the allegations did not constitute an offence even when the same were taken to be true in their entirety. It was also, in our view, wrong for the High Court to hold that the respondents were not the makers of the documents or that the filing of a civil suit based on the same would not constitute an offence. Whether or not the respondents had forged the documents and if so what offence was committed by the respondents was a matter for investigation which could not be prejudged or quashed by the High Court in exercise of its powers under Section 482 of Cr.P.C. or under Article 226 of the Constitution of India.
### Response:
1
### Explanation:
10. Coming to the case at hand it cannot be said that the allegations made in the complaint do not constitute any offence or that the same do not prima facie allege the complicity of the persons accused of committing the same. The complaint filed by the appellant sets out the relevant facts and alleges that the documents have been forged and fabricated only to be used as genuine to make a fraudulent and illegal claim over the land owned by complainant11. Equally untenable is the view taken by the High Court that the bar contained in Section 195(1)(b)(ii) could be attracted to the case at hand. In Iqbal Singh Marwahs case (supra) a Constitution Bench of this Court had authoritatively declared that Section 195(1)(b)(ii) Cr.P.C. was attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidencein any court and during the time the same was in custodia legis12. Mr. Venugopal was, therefore, correct in contending that the bar contained in Section 195 against taking of cognizance was not attracted to the case at hand as the sale deeds relied upon by GWL for claiming title to the property in question had not been forged while they were in custodia legis13. In the light of the above, the High Court was wrong in quashing the FIR on the ground that the allegations did not constitute an offence even when the same were taken to be true in their entirety. It was also, in our view, wrong for the High Court to hold that the respondents were not the makers of the documents or that the filing of a civil suit based on the same would not constitute an offence. Whether or not the respondents had forged the documents and if so what offence was committed by the respondents was a matter for investigation which could not be prejudged or quashed by the High Court in exercise of its powers under Section 482 of Cr.P.C. or under Article 226 of the Constitution of India.
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Hiralal Kalyanmalji Seth and Another Vs. Gendalal Mills Limited and Others | GUPTA, J.1. The appellants question the propriety of an order under Section 195 of the Indian Companies Act, 1913 made by the District Judge, Jalgaon, on November 22, 1967 summoning the appellants before him for the purpose of examining them concerning the trade, dealings, affairs and property of the respondent company, the Gendalal Mills Limited (in liquidation), Jalgaon. The winding-up of the company had been ordered by the Court on November 3, 1954.2. The relevant facts are these. On December 31, 1953 the former management of the company executed in favour of the appellants and several other persons a debenture trust deed for rupees fifteen lacs; the immovable property of the company and its fixture including machinery were given as security. On June 24, 1954 the management of the company executed an unattested deed of hypothecation to the tune of rupees ten lacs in favour of the second appellant; the movables of the company were hypothecated under this deed. Sometime in July, 1954 the debenture trustees proceeded to enforce the security and appointed the first appellant as receiver on their behalf. The receiver took possession of the entire property of the company and worked the mill till July 29, 1954 when one Indulal Girdharilal Lakhia made an application to the court for the winding-up of the company. On November 3, 1954 the court passed the order for winding-up. The debenture trustees had the properties of the company sold in enforcing the security after the winding-up order had been made. The official liquidator whom the court first appointed having resigned, the respondents before us were appointed joint official liquidators on June 7, 1955. The impugned order under Section 195 of the Indian Companies Act, 1913 was made on the prayer of the official liquidators. In their application asking the court to exercise its powers under Section 195, the official liquidators also alleged the debenture trust deed was a sham document executed to defraud the unsecured creditors, and that the debenture trustees had the properties of the company sold after the winding-up order was made without the knowledge and permission of the court.3. On the application of the official liquidators containing the said allegations and the facts summarized above, the District Judge, Jalgaon, made the impugned order under Section 195(1) on the view that the appellants were persons capable of giving information concerning the trade, dealings, affairs and the property of the company. The appeal taken against this order was dismissed summarily by a learned Single Judge of the Bombay High Court. The Letters Patent appeal preferred from the decision of the learned Single Judge was also dismissed summarily by a learned Single Judge of the Bombay High Court. The Letters patent appeal preferred from the decision of the learned Single Judge was also dismissed summarily but with certain observations. Referring to the contention raised on behalf of the appellants appellants that the debenture trust deed could not be challenged by the liquidators at this stage, the learned Judges observed that it was not clear from the trial Courts order whether a finding on that point was invited, and directed the District Judge that if the question was raised he should allow the appellants to argue that the sale effected by the appellants could not be challenged in the liquidation proceedings. The High Court overruled the other contention that the application made by the liquidators asking the court to exercise its powers under Section 195 was mala fide. The learned Judges observed that on the allegations made by the liquidators in their application it was clear that the liquidators wanted to ascertain how the appellants, who were secured creditors, had dealt with the security, and whether any surplus remained for the unsecured creditors. The appeal before us is by special leave from the decision of the Bombay High Court summarily dismissing the Letters Patent appeal.4. The only submission made before us on behalf of the appellants is that the application made by the liquidators to the court invoking its powers under Section 195 was not maintainable. We do not find any substance in this contention. In their application the liquidators stated certain facts on which the court thought that the appellants were capable of giving information concerning the trade, dealings, affairs and property of the company. This is what the court said :Unless the information regarding the debenture trust deed, dated December 31, 1953. The unattested hypothecation deed dated June 24, 1954, the affairs of the company during the possession of the receiver (opponent No. 1) on behalf of the debenture trustees, the alleged sales of properties of the company by the opponents and other trustees, the sale prices thereof, their utilisation, etc., is collected it is well high impossible to proceed with this winding-up proceedings in this Court in the interest of other creditors of the company whose debts are to the tune of rupees twenty-six lacs.Under Section 195 the Court may, after it has made a winding-up order, summon before it persons whom it thinks capable of giving such information. It cannot be said, in the circumstances outlined above, that the discretion was arbitrarily or capriciously exercised.5. On behalf of the appellants a prayer was made that in any event we should ask the court to determine the questions it proposed to ask the appellants before their examination started. We do not think that this is possible. The matter is in the discretion of the court that has the control of the Winding-up and it is for that court only to define the area of examination and decide what would be the necessary questions for the appellants to answer. Of course the court will not allow the powers under the section to be used for the purposes of vexation and oppression. The enquiry under Section 195 must be just and beneficial for the purposes of the winding-up and must not be aimed at harassing or annoying the persons summoned for examination. | 0[ds]We do not find any substance in this contention. In their application the liquidators stated certain facts on which the court thought that the appellants were capable of giving information concerning the trade, dealings, affairs and property of the company. This is what the court said :Unless the information regarding the debenture trust deed, dated December 31, 1953. The unattested hypothecation deed dated June 24, 1954, the affairs of the company during the possession of the receiver (opponent No. 1) on behalf of the debenture trustees, the alleged sales of properties of the company by the opponents and other trustees, the sale prices thereof, their utilisation, etc., is collected it is well high impossible to proceed with thisproceedings in this Court in the interest of other creditors of the company whose debts are to the tune of rupeeslacs.Under Section 195 the Court may, after it has made aorder, summon before it persons whom it thinks capable of giving such information. It cannot be said, in the circumstances outlined above, that the discretion was arbitrarily or capriciouslydo not think that this is possible. The matter is in the discretion of the court that has the control of theand it is for that court only to define the area of examination and decide what would be the necessary questions for the appellants to answer. Of course the court will not allow the powers under the section to be used for the purposes of vexation and oppression. The enquiry under Section 195 must be just and beneficial for the purposes of theand must not be aimed at harassing or annoying the persons summoned for examination. | 0 | 1,080 | 304 | ### 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:
GUPTA, J.1. The appellants question the propriety of an order under Section 195 of the Indian Companies Act, 1913 made by the District Judge, Jalgaon, on November 22, 1967 summoning the appellants before him for the purpose of examining them concerning the trade, dealings, affairs and property of the respondent company, the Gendalal Mills Limited (in liquidation), Jalgaon. The winding-up of the company had been ordered by the Court on November 3, 1954.2. The relevant facts are these. On December 31, 1953 the former management of the company executed in favour of the appellants and several other persons a debenture trust deed for rupees fifteen lacs; the immovable property of the company and its fixture including machinery were given as security. On June 24, 1954 the management of the company executed an unattested deed of hypothecation to the tune of rupees ten lacs in favour of the second appellant; the movables of the company were hypothecated under this deed. Sometime in July, 1954 the debenture trustees proceeded to enforce the security and appointed the first appellant as receiver on their behalf. The receiver took possession of the entire property of the company and worked the mill till July 29, 1954 when one Indulal Girdharilal Lakhia made an application to the court for the winding-up of the company. On November 3, 1954 the court passed the order for winding-up. The debenture trustees had the properties of the company sold in enforcing the security after the winding-up order had been made. The official liquidator whom the court first appointed having resigned, the respondents before us were appointed joint official liquidators on June 7, 1955. The impugned order under Section 195 of the Indian Companies Act, 1913 was made on the prayer of the official liquidators. In their application asking the court to exercise its powers under Section 195, the official liquidators also alleged the debenture trust deed was a sham document executed to defraud the unsecured creditors, and that the debenture trustees had the properties of the company sold after the winding-up order was made without the knowledge and permission of the court.3. On the application of the official liquidators containing the said allegations and the facts summarized above, the District Judge, Jalgaon, made the impugned order under Section 195(1) on the view that the appellants were persons capable of giving information concerning the trade, dealings, affairs and the property of the company. The appeal taken against this order was dismissed summarily by a learned Single Judge of the Bombay High Court. The Letters Patent appeal preferred from the decision of the learned Single Judge was also dismissed summarily by a learned Single Judge of the Bombay High Court. The Letters patent appeal preferred from the decision of the learned Single Judge was also dismissed summarily but with certain observations. Referring to the contention raised on behalf of the appellants appellants that the debenture trust deed could not be challenged by the liquidators at this stage, the learned Judges observed that it was not clear from the trial Courts order whether a finding on that point was invited, and directed the District Judge that if the question was raised he should allow the appellants to argue that the sale effected by the appellants could not be challenged in the liquidation proceedings. The High Court overruled the other contention that the application made by the liquidators asking the court to exercise its powers under Section 195 was mala fide. The learned Judges observed that on the allegations made by the liquidators in their application it was clear that the liquidators wanted to ascertain how the appellants, who were secured creditors, had dealt with the security, and whether any surplus remained for the unsecured creditors. The appeal before us is by special leave from the decision of the Bombay High Court summarily dismissing the Letters Patent appeal.4. The only submission made before us on behalf of the appellants is that the application made by the liquidators to the court invoking its powers under Section 195 was not maintainable. We do not find any substance in this contention. In their application the liquidators stated certain facts on which the court thought that the appellants were capable of giving information concerning the trade, dealings, affairs and property of the company. This is what the court said :Unless the information regarding the debenture trust deed, dated December 31, 1953. The unattested hypothecation deed dated June 24, 1954, the affairs of the company during the possession of the receiver (opponent No. 1) on behalf of the debenture trustees, the alleged sales of properties of the company by the opponents and other trustees, the sale prices thereof, their utilisation, etc., is collected it is well high impossible to proceed with this winding-up proceedings in this Court in the interest of other creditors of the company whose debts are to the tune of rupees twenty-six lacs.Under Section 195 the Court may, after it has made a winding-up order, summon before it persons whom it thinks capable of giving such information. It cannot be said, in the circumstances outlined above, that the discretion was arbitrarily or capriciously exercised.5. On behalf of the appellants a prayer was made that in any event we should ask the court to determine the questions it proposed to ask the appellants before their examination started. We do not think that this is possible. The matter is in the discretion of the court that has the control of the Winding-up and it is for that court only to define the area of examination and decide what would be the necessary questions for the appellants to answer. Of course the court will not allow the powers under the section to be used for the purposes of vexation and oppression. The enquiry under Section 195 must be just and beneficial for the purposes of the winding-up and must not be aimed at harassing or annoying the persons summoned for examination.
### Response:
0
### Explanation:
We do not find any substance in this contention. In their application the liquidators stated certain facts on which the court thought that the appellants were capable of giving information concerning the trade, dealings, affairs and property of the company. This is what the court said :Unless the information regarding the debenture trust deed, dated December 31, 1953. The unattested hypothecation deed dated June 24, 1954, the affairs of the company during the possession of the receiver (opponent No. 1) on behalf of the debenture trustees, the alleged sales of properties of the company by the opponents and other trustees, the sale prices thereof, their utilisation, etc., is collected it is well high impossible to proceed with thisproceedings in this Court in the interest of other creditors of the company whose debts are to the tune of rupeeslacs.Under Section 195 the Court may, after it has made aorder, summon before it persons whom it thinks capable of giving such information. It cannot be said, in the circumstances outlined above, that the discretion was arbitrarily or capriciouslydo not think that this is possible. The matter is in the discretion of the court that has the control of theand it is for that court only to define the area of examination and decide what would be the necessary questions for the appellants to answer. Of course the court will not allow the powers under the section to be used for the purposes of vexation and oppression. The enquiry under Section 195 must be just and beneficial for the purposes of theand must not be aimed at harassing or annoying the persons summoned for examination.
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Chottan Mahton & Others Vs. State of Bihar | will be noticed that three appellants are named in the first information report and the fourth appellant is mentioned as the son of Shamlal Chamar. Sudhan Gope in his evidence before the Additional Sessions Judge gave a few more details and he added the name of Ram Prasad, who was also known as doctor, in this manner :"One dacoit said, see, rascal is coming, assault him. At this Ram Prasad fired the gun from upstairs (Kotha). Thereafter I heard sound of weeping. After Ram Prasad, Chottan fired the gun, second time."4. We may mention that Ram Prasad was one of the 16 persons who were committed to stand trial before the at Additional Sessions Judge, but he was acquired being given the benefit of doubt. We have mentioned this fact because the learned counsel for the appellant has strongly urged that the investigating officer, Inspector Madan Mohan Prasad, P.W. 14, had deliberately made the witnesses include some of the persons with whom he did not have cordial relations. It is said that on February 20, 1958, a public meeting was held at Kachaharis, two miles from Mehtarwan, and Dr. Ram Prasad had addressed the meeting and various accusations were made against Madan Mohan Prasad even though he was present at the meeting, and it is on that very day that Madan Mohan Prasad sent a report against Chottan and Ram Prasad, stating that "Chottan took part in dacoity and he was leader of dacoits, and that Ram Prasad was also an important figure of this gang". The learned counsel says that we should view the evidence very strictly and in such cases indeed it is difficult to separate the chaff from the grain.5. In our opinion both the learned Additional Sessions Judge and the High Court have viewed the evidence with car and we are unable to say that they have misread the evidence or have not given due weight to any weaknesses appearing in the prosecution story.6. The question really is one of identification and as far as those four appellants are concerned their names were mentioned in the first information report which was lodged within a very short time after the occurrence. It is true that the night was dark but Budhan Gope had as many as 30 injuries on true his person out of which four had been caused by sharp-edged weapon and the rest by hard blunt substance, and he had fought with the dacoits with a piece of bamboo. We are, therefore, unable to say that he would not be in a position to recognize some of the dacoits. It appears that the dacoits thought that he had died because they had thrown him down from the Kotha.7. The learned counsel says that the High Court erred in relying on the statement of Budhan Gope because he has included names other than those mentioned in the F.I.R., and because in independent witness of the village has come forward to say that any name was given out by the inmates, including P.W. 5, to them. The High Court was of the view that "it may well being the names were not given out to the villagers immediately as many known persons of the village had taken part in dacoity". The High Court observed :"But that does not mean that evidence of P.W. 1 or 5 is not trustworthy even against the appellant. As the learned Additional Session Judge has remarked that if some of the names of these appellants were falsely given in the first information report at the instance of the police officer (P.W. 14), as is the defence case, he could not have forgotten to mention the name of accused Ram Prasad in that event. To me it appears that these four appellants were rightly identified by P.W. 5 as also P.W. 1, whose evidence I shall presently deal, and these names were surely mentioned by P.W. 6 before P.W. 10 who in his turn got their names mentioned in the first information report. The name of appellant Karo Chamar was mentioned by description of his being a son of Shamlal Chamar. When I shall deal with the cases of the four appellants on the point of alleged enmity, it would be noticed that none of the other three appellants other than appellant Chottan claimed to have any enmity with the Police Inspector. They made futile attempts to allege some sort of enmity with Budhan or his relations. Appellant Karo Chamar also alleged some sort of enmity with the chaukidar. It would thus appear that five persons who were named or mentioned in first information report by description were not so mentioned through the instrumentality of the Police Inspector as was argued on behalf of the appellants but the names were surely given out by the inmates of the house, namely, P. Ws. 1 and 5, to the chaukidar who then got their names mentioned in the first information report."8. We are not convinced that the High Court erred in coming to the above conclusion.9. Another witness relied on by the High Court is Ram Charittar Gope, P.W. 1. He was with his brother Mangal who was shot dead. He saw the appellant Chottan on the roof firing. He also recognised the other appellants among other dacoits. We were taken through relevant parts of his evidence. We are unable to say that the High Court should not have placed reliance on his evidence.10. The learned counsel contends that on the facts as found by the High Court conviction under Section 396, I.P.C., is not sustainable as 12 persons out of 16 committed to Sessions have been acquitted. This appoint does not seem to have been argued before the High Court. The learned Additional Sessions Judge had however found that accused Chottan, Karoo Mahto and Shorai Mahto of Borwn along with others numbering more than sixteen committed dacoity in the house of Budhan. If this finding is accepted, conviction under Section 396 was not wrong. | 0[ds]The question really is one of identification and as far as those four appellants are concerned their names were mentioned in the first information report which was lodged within a very short time after theoccurrence. It is true that the night was dark but Budhan Gope had as many as 30 injuries on true his person out of which four had been caused by sharp-edged weapon and the rest by hard blunt substance, and he had fought with the dacoits with a piece of bamboo. We are, therefore, unable to say that he would not be in a position to recognize some of the dacoits. It appears that the dacoits thought that he had died because they had thrown him down from the Kotha.We are not convinced that the High Court erred in coming to the above conclusion.9. Another witness relied on by the High Court is Ram Charittar Gope, P.W. 1. He was with his brother Mangal who was shot dead. He saw the appellant Chottan on the roof firing. He also recognised the other appellants among other dacoits. We were taken through relevant parts of his evidence. We are unable to say that the High Court should not have placed reliance on hisappoint does not seem to have been argued before the High Court. The learned Additional Sessions Judge had however found that accused Chottan, Karoo Mahto and Shorai Mahto of Borwn along with others numbering more than sixteen committed dacoity in the house of Budhan. If this finding is accepted, conviction under Section 396 was not wrong.In our opinion both the learned Additional Sessions Judge and the High Court have viewed the evidence with car and we are unable to say that they have misread the evidence or have not given due weight to any weaknesses appearing in the prosecution story. | 0 | 1,545 | 327 | ### 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:
will be noticed that three appellants are named in the first information report and the fourth appellant is mentioned as the son of Shamlal Chamar. Sudhan Gope in his evidence before the Additional Sessions Judge gave a few more details and he added the name of Ram Prasad, who was also known as doctor, in this manner :"One dacoit said, see, rascal is coming, assault him. At this Ram Prasad fired the gun from upstairs (Kotha). Thereafter I heard sound of weeping. After Ram Prasad, Chottan fired the gun, second time."4. We may mention that Ram Prasad was one of the 16 persons who were committed to stand trial before the at Additional Sessions Judge, but he was acquired being given the benefit of doubt. We have mentioned this fact because the learned counsel for the appellant has strongly urged that the investigating officer, Inspector Madan Mohan Prasad, P.W. 14, had deliberately made the witnesses include some of the persons with whom he did not have cordial relations. It is said that on February 20, 1958, a public meeting was held at Kachaharis, two miles from Mehtarwan, and Dr. Ram Prasad had addressed the meeting and various accusations were made against Madan Mohan Prasad even though he was present at the meeting, and it is on that very day that Madan Mohan Prasad sent a report against Chottan and Ram Prasad, stating that "Chottan took part in dacoity and he was leader of dacoits, and that Ram Prasad was also an important figure of this gang". The learned counsel says that we should view the evidence very strictly and in such cases indeed it is difficult to separate the chaff from the grain.5. In our opinion both the learned Additional Sessions Judge and the High Court have viewed the evidence with car and we are unable to say that they have misread the evidence or have not given due weight to any weaknesses appearing in the prosecution story.6. The question really is one of identification and as far as those four appellants are concerned their names were mentioned in the first information report which was lodged within a very short time after the occurrence. It is true that the night was dark but Budhan Gope had as many as 30 injuries on true his person out of which four had been caused by sharp-edged weapon and the rest by hard blunt substance, and he had fought with the dacoits with a piece of bamboo. We are, therefore, unable to say that he would not be in a position to recognize some of the dacoits. It appears that the dacoits thought that he had died because they had thrown him down from the Kotha.7. The learned counsel says that the High Court erred in relying on the statement of Budhan Gope because he has included names other than those mentioned in the F.I.R., and because in independent witness of the village has come forward to say that any name was given out by the inmates, including P.W. 5, to them. The High Court was of the view that "it may well being the names were not given out to the villagers immediately as many known persons of the village had taken part in dacoity". The High Court observed :"But that does not mean that evidence of P.W. 1 or 5 is not trustworthy even against the appellant. As the learned Additional Session Judge has remarked that if some of the names of these appellants were falsely given in the first information report at the instance of the police officer (P.W. 14), as is the defence case, he could not have forgotten to mention the name of accused Ram Prasad in that event. To me it appears that these four appellants were rightly identified by P.W. 5 as also P.W. 1, whose evidence I shall presently deal, and these names were surely mentioned by P.W. 6 before P.W. 10 who in his turn got their names mentioned in the first information report. The name of appellant Karo Chamar was mentioned by description of his being a son of Shamlal Chamar. When I shall deal with the cases of the four appellants on the point of alleged enmity, it would be noticed that none of the other three appellants other than appellant Chottan claimed to have any enmity with the Police Inspector. They made futile attempts to allege some sort of enmity with Budhan or his relations. Appellant Karo Chamar also alleged some sort of enmity with the chaukidar. It would thus appear that five persons who were named or mentioned in first information report by description were not so mentioned through the instrumentality of the Police Inspector as was argued on behalf of the appellants but the names were surely given out by the inmates of the house, namely, P. Ws. 1 and 5, to the chaukidar who then got their names mentioned in the first information report."8. We are not convinced that the High Court erred in coming to the above conclusion.9. Another witness relied on by the High Court is Ram Charittar Gope, P.W. 1. He was with his brother Mangal who was shot dead. He saw the appellant Chottan on the roof firing. He also recognised the other appellants among other dacoits. We were taken through relevant parts of his evidence. We are unable to say that the High Court should not have placed reliance on his evidence.10. The learned counsel contends that on the facts as found by the High Court conviction under Section 396, I.P.C., is not sustainable as 12 persons out of 16 committed to Sessions have been acquitted. This appoint does not seem to have been argued before the High Court. The learned Additional Sessions Judge had however found that accused Chottan, Karoo Mahto and Shorai Mahto of Borwn along with others numbering more than sixteen committed dacoity in the house of Budhan. If this finding is accepted, conviction under Section 396 was not wrong.
### Response:
0
### Explanation:
The question really is one of identification and as far as those four appellants are concerned their names were mentioned in the first information report which was lodged within a very short time after theoccurrence. It is true that the night was dark but Budhan Gope had as many as 30 injuries on true his person out of which four had been caused by sharp-edged weapon and the rest by hard blunt substance, and he had fought with the dacoits with a piece of bamboo. We are, therefore, unable to say that he would not be in a position to recognize some of the dacoits. It appears that the dacoits thought that he had died because they had thrown him down from the Kotha.We are not convinced that the High Court erred in coming to the above conclusion.9. Another witness relied on by the High Court is Ram Charittar Gope, P.W. 1. He was with his brother Mangal who was shot dead. He saw the appellant Chottan on the roof firing. He also recognised the other appellants among other dacoits. We were taken through relevant parts of his evidence. We are unable to say that the High Court should not have placed reliance on hisappoint does not seem to have been argued before the High Court. The learned Additional Sessions Judge had however found that accused Chottan, Karoo Mahto and Shorai Mahto of Borwn along with others numbering more than sixteen committed dacoity in the house of Budhan. If this finding is accepted, conviction under Section 396 was not wrong.In our opinion both the learned Additional Sessions Judge and the High Court have viewed the evidence with car and we are unable to say that they have misread the evidence or have not given due weight to any weaknesses appearing in the prosecution story.
|
Awadh Bihari Yadava Vs. State Of Bihar | 898 , to substantiate the plea. We are of the view that Jai Singhs case is clearly distinguishable. In that case, the appellant before this Court prayed for quashing the demand made against him in respect of royalty. His case was that gypsum ore was less than the particular percentage of purity. Whereas according to the revenue, it was not so established and the substance contained a higher percentage of purity. The plea of the appellant was not accepted by the statutory authorities. The writ petition filed by the appellant in the High Court was dismissed on the ground that it involved determination of disputed questions of fact and the appellant had an alternate remedy. Against the dismissal of the write petition the appellant filed an appeal in this Court on a certificate granted by the High Court. He also filed a suit wherein the same question was agitated which was the subject matter of the writ petition. In these circumstances, this Court held that the appellant, in the said case, cannot pursue two parallel remedies in respect of the same matter at the same time. We are also of the view that ordinarily the above rule should prevail. There may be extraordinary situations or circumstances, which may even warrant, a different approach, where the orders passed by the Court are sought to be violated or thwarted with impunity. The Court cannot be a silent spectator in such extraordinary situations. The position obtaining herein is rather a different and unusual one. The writ petition was filed by the Society (C. W. J. C. No. 6373/88), praying for a direction to the respondents to give effect to the directions contained in the earlier judgment of this Court in C. W. J. C. No. 3241/82, dated 23-9-1984, and for other consequential or incidental reliefs. So, it cannot be said that in the instant case, the relief sought was to remove the encroachments from the lands or to remove the unauthorised constructions, which are covered by the encroachment case or the title suit. They may be incidental or consequential to the main relief, in giving effect to the earlier directions or orders of Court. But such relief cannot be withheld or denied. In the judgment dated 23-9-1984, rendered in C. W. J. C. No. 3241/82, the Court categorically held that non-passing of the award will not nullify the acquisition, the validity of the acquisition was upheld by the High Court and the Supreme Court, and the encroachments or the unauthorised structures were put up by persons in the property at their own risk, and it was further observed that once possession of the land was taken by the Government the fact that the owner of the land entered upon the land, will not obliterate the consequence of vesting, and allowed the writ petition filed by the Society, and quashed the steps taken for de-requisitioning of the land requested by the Authority and issued a writ of mandamus directing the Collector of Patna to prepare the award as expeditiously as possible. The plea of the respondents that the project itself was rendered an impossibility on account of excessive encroachments or unauthorised constructions, was repelled, and relying upon the decision of this Court in Balwant Narayan Bhagde v. M.D. Bhagwat, AIR 1975 SC 1767 , it was held that once possession of the land was taken by the Government, even if the owner of the land entered upon the land and resumed possession of it the very next moment, such act does not have effect of obliterating the consequences of vesting. In allowing the prayer of the Society in C. W. J. C. No. 6373/88, by a common judgment dated 30-7-1993, the High Court was only implementing its earlier order and directions in C. W. J. C. No. 3241/82 which it was bound to do in the circumstances. We hold that the directions and orders contained in C. W. J. C. No. 3241/82, which were not interfered with, by this Court in special leave petition, by order dated 21-3-1984, should be fully and effectively implemented. We hold so. 12. Mr. Sanyal, senior counsel feebly raised the plea that the Government authorities did not take possession of a small portion of the land, about 7 acres; and there is no award relating thereto, and the proceedings regarding that portion of the land, had lapsed. This plea is without substance. In our view the proceedings dated 31-7-1984 is in substance an award passed in pursuance of the directions given by this Court in C. W. J. C. No. 3421/82. The entire land, for which request for acquisition was made by the Authority, was delivered over to the Authority. Possession was taken of the entire land and the plea that possession of a small portion of the land was not taken in against the record (See AIR 1974 SC 1886 at 1889). 13. All the contentions urged on behalf of the appellants fail. The appeals are wholly without merit and we dismiss them with costs. It is distressing to note that the land acquisition proceeding which was initiated for a very laudable purpose, more than 37 years ago, is not yet complete. At one point of time, it was brought to the notice of the Court that even the files relating to the acquisition of land are not traceable. The High Court was constrained to hold, on an earlier occasion, that non-traceability of the files must be attributed deliberate destruction of the relevant files by the interested parties, and but for the intervention of influential persons, the Government would not have stayed the entire proceedings as it did on 3-5-1965. We are constrained to observe that the hands of the interested parties seem to be still active, and the intervention of such influential persons has not disappeared (AIR 1974 SC 1886 (1888)). A laudable and noble cause is delayed for more than 3 decades, under on pretext or the other. We express our anguish in the entire episode. | 0[ds]In that case, the appellant before this Court prayed for quashing the demand made against him in respect of royalty. His case was that gypsum ore was less than the particular percentage of purity. Whereas according to the revenue, it was not so established and the substance contained a higher percentage of purity. The plea of the appellant was not accepted by the statutory authorities. The writ petition filed by the appellant in the High Court was dismissed on the ground that it involved determination of disputed questions of fact and the appellant had an alternate remedy. Against the dismissal of the write petition the appellant filed an appeal in this Court on a certificate granted by the High Court. He also filed a suit wherein the same question was agitated which was the subject matter of the writ petition. In these circumstances, this Court held that the appellant, in the said case, cannot pursue two parallel remedies in respect of the same matter at the same time. We are also of the view that ordinarily the above rule should prevail. There may be extraordinary situations or circumstances, which may even warrant, a different approach, where the orders passed by the Court are sought to be violated or thwarted with impunity. The Court cannot be a silent spectator in such extraordinary situations. The position obtaining herein is rather a different and unusual one. The writ petition was filed by the Society (C. W. J. C. No. 6373/88), praying for a direction to the respondents to give effect to the directions contained in the earlier judgment of this Court in C. W. J. C. No. 3241/82, dated 23-9-1984, and for other consequential or incidental reliefs. So, it cannot be said that in the instant case, the relief sought was to remove the encroachments from the lands or to remove the unauthorised constructions, which are covered by the encroachment case or the title suit. They may be incidental or consequential to the main relief, in giving effect to the earlier directions or orders of Court. But such relief cannot be withheld or denied. In the judgment dated 23-9-1984, rendered in C. W. J. C. No. 3241/82, the Court categorically held that non-passing of the award will not nullify the acquisition, the validity of the acquisition was upheld by the High Court and the Supreme Court, and the encroachments or the unauthorised structures were put up by persons in the property at their own risk, and it was further observed that once possession of the land was taken by the Government the fact that the owner of the land entered upon the land, will not obliterate the consequence of vesting, and allowed the writ petition filed by the Society, and quashed the steps taken for de-requisitioning of the land requested by the Authority and issued a writ of mandamus directing the Collector of Patna to prepare the award as expeditiously as possible. The plea of the respondents that the project itself was rendered an impossibility on account of excessive encroachments or unauthorised constructions, was repelled, and relying upon the decision of this Court in Balwant Narayan Bhagde v. M.D. Bhagwat, AIR 1975 SC 1767 , it was held that once possession of the land was taken by the Government, even if the owner of the land entered upon the land and resumed possession of it the very next moment, such act does not have effect of obliterating the consequences of vesting. In allowing the prayer of the Society in C. W. J. C. No. 6373/88, by a common judgment dated 30-7-1993, the High Court was only implementing its earlier order and directions in C. W. J. C. No. 3241/82 which it was bound to do in the circumstances. We hold that the directions and orders contained in C. W. J. C. No. 3241/82, which were not interfered with, by this Court in special leave petition, by order dated 21-3-1984, should be fully and effectively implemented. We hold soThis plea is without substance. In our view the proceedings dated 31-7-1984 is in substance an award passed in pursuance of the directions given by this Court in C. W. J. C. No. 3421/82. The entire land, for which request for acquisition was made by the Authority, was delivered over to the Authority. Possession was taken of the entire land and the plea that possession of a small portion of the land was not taken in against the record (See AIR 1974 SC 1886 at 1889)13. All the contentions urged on behalf of the appellants fail. The appeals are wholly without merit and we dismiss them with costs. It is distressing to note that the land acquisition proceeding which was initiated for a very laudable purpose, more than 37 years ago, is not yet complete. At one point of time, it was brought to the notice of the Court that even the files relating to the acquisition of land are not traceable. The High Court was constrained to hold, on an earlier occasion, that non-traceability of the files must be attributed deliberate destruction of the relevant files by the interested parties, and but for the intervention of influential persons, the Government would not have stayed the entire proceedings as it did on 3-5-1965. We are constrained to observe that the hands of the interested parties seem to be still active, and the intervention of such influential persons has not disappeared (AIR 1974 SC 1886 (1888)). A laudable and noble cause is delayed for more than 3 decades, under on pretext or the other. We express our anguish in the entire episode. | 0 | 5,154 | 1,037 | ### 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:
898 , to substantiate the plea. We are of the view that Jai Singhs case is clearly distinguishable. In that case, the appellant before this Court prayed for quashing the demand made against him in respect of royalty. His case was that gypsum ore was less than the particular percentage of purity. Whereas according to the revenue, it was not so established and the substance contained a higher percentage of purity. The plea of the appellant was not accepted by the statutory authorities. The writ petition filed by the appellant in the High Court was dismissed on the ground that it involved determination of disputed questions of fact and the appellant had an alternate remedy. Against the dismissal of the write petition the appellant filed an appeal in this Court on a certificate granted by the High Court. He also filed a suit wherein the same question was agitated which was the subject matter of the writ petition. In these circumstances, this Court held that the appellant, in the said case, cannot pursue two parallel remedies in respect of the same matter at the same time. We are also of the view that ordinarily the above rule should prevail. There may be extraordinary situations or circumstances, which may even warrant, a different approach, where the orders passed by the Court are sought to be violated or thwarted with impunity. The Court cannot be a silent spectator in such extraordinary situations. The position obtaining herein is rather a different and unusual one. The writ petition was filed by the Society (C. W. J. C. No. 6373/88), praying for a direction to the respondents to give effect to the directions contained in the earlier judgment of this Court in C. W. J. C. No. 3241/82, dated 23-9-1984, and for other consequential or incidental reliefs. So, it cannot be said that in the instant case, the relief sought was to remove the encroachments from the lands or to remove the unauthorised constructions, which are covered by the encroachment case or the title suit. They may be incidental or consequential to the main relief, in giving effect to the earlier directions or orders of Court. But such relief cannot be withheld or denied. In the judgment dated 23-9-1984, rendered in C. W. J. C. No. 3241/82, the Court categorically held that non-passing of the award will not nullify the acquisition, the validity of the acquisition was upheld by the High Court and the Supreme Court, and the encroachments or the unauthorised structures were put up by persons in the property at their own risk, and it was further observed that once possession of the land was taken by the Government the fact that the owner of the land entered upon the land, will not obliterate the consequence of vesting, and allowed the writ petition filed by the Society, and quashed the steps taken for de-requisitioning of the land requested by the Authority and issued a writ of mandamus directing the Collector of Patna to prepare the award as expeditiously as possible. The plea of the respondents that the project itself was rendered an impossibility on account of excessive encroachments or unauthorised constructions, was repelled, and relying upon the decision of this Court in Balwant Narayan Bhagde v. M.D. Bhagwat, AIR 1975 SC 1767 , it was held that once possession of the land was taken by the Government, even if the owner of the land entered upon the land and resumed possession of it the very next moment, such act does not have effect of obliterating the consequences of vesting. In allowing the prayer of the Society in C. W. J. C. No. 6373/88, by a common judgment dated 30-7-1993, the High Court was only implementing its earlier order and directions in C. W. J. C. No. 3241/82 which it was bound to do in the circumstances. We hold that the directions and orders contained in C. W. J. C. No. 3241/82, which were not interfered with, by this Court in special leave petition, by order dated 21-3-1984, should be fully and effectively implemented. We hold so. 12. Mr. Sanyal, senior counsel feebly raised the plea that the Government authorities did not take possession of a small portion of the land, about 7 acres; and there is no award relating thereto, and the proceedings regarding that portion of the land, had lapsed. This plea is without substance. In our view the proceedings dated 31-7-1984 is in substance an award passed in pursuance of the directions given by this Court in C. W. J. C. No. 3421/82. The entire land, for which request for acquisition was made by the Authority, was delivered over to the Authority. Possession was taken of the entire land and the plea that possession of a small portion of the land was not taken in against the record (See AIR 1974 SC 1886 at 1889). 13. All the contentions urged on behalf of the appellants fail. The appeals are wholly without merit and we dismiss them with costs. It is distressing to note that the land acquisition proceeding which was initiated for a very laudable purpose, more than 37 years ago, is not yet complete. At one point of time, it was brought to the notice of the Court that even the files relating to the acquisition of land are not traceable. The High Court was constrained to hold, on an earlier occasion, that non-traceability of the files must be attributed deliberate destruction of the relevant files by the interested parties, and but for the intervention of influential persons, the Government would not have stayed the entire proceedings as it did on 3-5-1965. We are constrained to observe that the hands of the interested parties seem to be still active, and the intervention of such influential persons has not disappeared (AIR 1974 SC 1886 (1888)). A laudable and noble cause is delayed for more than 3 decades, under on pretext or the other. We express our anguish in the entire episode.
### Response:
0
### Explanation:
In that case, the appellant before this Court prayed for quashing the demand made against him in respect of royalty. His case was that gypsum ore was less than the particular percentage of purity. Whereas according to the revenue, it was not so established and the substance contained a higher percentage of purity. The plea of the appellant was not accepted by the statutory authorities. The writ petition filed by the appellant in the High Court was dismissed on the ground that it involved determination of disputed questions of fact and the appellant had an alternate remedy. Against the dismissal of the write petition the appellant filed an appeal in this Court on a certificate granted by the High Court. He also filed a suit wherein the same question was agitated which was the subject matter of the writ petition. In these circumstances, this Court held that the appellant, in the said case, cannot pursue two parallel remedies in respect of the same matter at the same time. We are also of the view that ordinarily the above rule should prevail. There may be extraordinary situations or circumstances, which may even warrant, a different approach, where the orders passed by the Court are sought to be violated or thwarted with impunity. The Court cannot be a silent spectator in such extraordinary situations. The position obtaining herein is rather a different and unusual one. The writ petition was filed by the Society (C. W. J. C. No. 6373/88), praying for a direction to the respondents to give effect to the directions contained in the earlier judgment of this Court in C. W. J. C. No. 3241/82, dated 23-9-1984, and for other consequential or incidental reliefs. So, it cannot be said that in the instant case, the relief sought was to remove the encroachments from the lands or to remove the unauthorised constructions, which are covered by the encroachment case or the title suit. They may be incidental or consequential to the main relief, in giving effect to the earlier directions or orders of Court. But such relief cannot be withheld or denied. In the judgment dated 23-9-1984, rendered in C. W. J. C. No. 3241/82, the Court categorically held that non-passing of the award will not nullify the acquisition, the validity of the acquisition was upheld by the High Court and the Supreme Court, and the encroachments or the unauthorised structures were put up by persons in the property at their own risk, and it was further observed that once possession of the land was taken by the Government the fact that the owner of the land entered upon the land, will not obliterate the consequence of vesting, and allowed the writ petition filed by the Society, and quashed the steps taken for de-requisitioning of the land requested by the Authority and issued a writ of mandamus directing the Collector of Patna to prepare the award as expeditiously as possible. The plea of the respondents that the project itself was rendered an impossibility on account of excessive encroachments or unauthorised constructions, was repelled, and relying upon the decision of this Court in Balwant Narayan Bhagde v. M.D. Bhagwat, AIR 1975 SC 1767 , it was held that once possession of the land was taken by the Government, even if the owner of the land entered upon the land and resumed possession of it the very next moment, such act does not have effect of obliterating the consequences of vesting. In allowing the prayer of the Society in C. W. J. C. No. 6373/88, by a common judgment dated 30-7-1993, the High Court was only implementing its earlier order and directions in C. W. J. C. No. 3241/82 which it was bound to do in the circumstances. We hold that the directions and orders contained in C. W. J. C. No. 3241/82, which were not interfered with, by this Court in special leave petition, by order dated 21-3-1984, should be fully and effectively implemented. We hold soThis plea is without substance. In our view the proceedings dated 31-7-1984 is in substance an award passed in pursuance of the directions given by this Court in C. W. J. C. No. 3421/82. The entire land, for which request for acquisition was made by the Authority, was delivered over to the Authority. Possession was taken of the entire land and the plea that possession of a small portion of the land was not taken in against the record (See AIR 1974 SC 1886 at 1889)13. All the contentions urged on behalf of the appellants fail. The appeals are wholly without merit and we dismiss them with costs. It is distressing to note that the land acquisition proceeding which was initiated for a very laudable purpose, more than 37 years ago, is not yet complete. At one point of time, it was brought to the notice of the Court that even the files relating to the acquisition of land are not traceable. The High Court was constrained to hold, on an earlier occasion, that non-traceability of the files must be attributed deliberate destruction of the relevant files by the interested parties, and but for the intervention of influential persons, the Government would not have stayed the entire proceedings as it did on 3-5-1965. We are constrained to observe that the hands of the interested parties seem to be still active, and the intervention of such influential persons has not disappeared (AIR 1974 SC 1886 (1888)). A laudable and noble cause is delayed for more than 3 decades, under on pretext or the other. We express our anguish in the entire episode.
|
Ballarpur Collieries Co Vs. The Presiding Officeir, C.G.I.T. Dhanbad And Anr | omnibus or industrywise reference it is not necessary that the dispute must relate to each one of them or the cause of action must exist in all cases." that there was no dispute between the appellant and its workmen pending before Shri Palits Tribunal. 5. This view of the High Court was seriously assailed before us by Shri Phadke. According to him the reference under S. 36A of the Act requiring consideration of any provision of an earlier award or settlement must relate back to the earlier reference culminating in the award or settlement and, therefore, if the appellant was a party to the original reference which resulted in the "Majumdar Award", then the appellant must necessarily be considered to be a party to the later reference of which Shri Palit was seized. And if that be so, then, the appellant, in Shri Phadkes submission, must be considered to be a party to the reference under S. 36A, notwithstanding its desire not to take part in those proceedings or even an express application by it to the Tribunal for permission to withdraw therefrom. 6. In our view, there is force in Shri Phadkes submission and the High Court was wrong in holding that S. 23 (b) is inapplicable to the present case. Section 36A provides:"36A Power to remove difficulties: (1) If in the opinion of the appropriate Government, any difficulty or doubt arises as to the interpretation of any provision of an award or settlement, it may refer the question to such Labour Court, Tribunal or National Tribunal as it may think fit. (2) The Labour Court, Tribunal or National Tribunal to which such question is referred shall, after giving the parties an opportunity of being heard, decide such question and its decision shall be final and binding on all such parties." Now, quite clearly proceedings for removing difficulties or doubts arising as to the interpretation of any provision of the Majumdar Award must be construed to have the effect of reviving those earlier proceedings for the limited purpose of considering the removal of such difficulty or doubt. It is only by virtually reopening the proceedings of the earlier reference that the purpose and object of correct interpretation of that Award and of the removal of difficulties or doubts arising therefrom could be achieved. The legal effect of reference under S. 36A must, therefore, in our opinion be to reopen the earlier reference proceedings which terminated in the Majumdar Award,though only for the limited purpose of the interpretation of the provisions of that Award in respect of such difficulties or doubts as required removal. Now, if that be the scope of S. 36A of the Act then there can be little doubt that all parties to the original reference which resulted in the Majumdar Award must as a matter of law be deemed necessarily to be parties to the proceedings to the reference under Section 36A as well. This seems to us to be implicit in the very scheme and object of this section as would be clear from the fact that the decision of the question referred under this section has been rendered final and binding on all parties who have been given an opportunity of being heard. This does not contemplate consideration of the question whether any party was in fact feeling interested in the particular subject matter of difficulty or doubt. In this connection it has to be borne in mind that proceedings of industrial adjudication are not considered as proceedings purely between two private parties having no impact on the industry as such. Such proceedings involve larger public interest in which the industry as such (including the employer and the labour) is vitally interested. The scheme of the law of industrial adjudication designed to promote industrial peace and harmony, so as to increase production and help the growth and progress of national economy has to be considered in the background of our constitutional set-up according to which the State has to strive to secure and effectively protect a social order in which social, economic and political justice must inform all institutions of national life and the material resources of the community are so distributed as best to subserve the common good. The appellant could not, therefore, by merely expressing its desire even if that desire is expressed by presenting a formal application to withdraw from the proceeding?s cease to be a party to those proceedings so as to avoid the legal consequences which, according to legislative intendment, flow by reason of the pendency of those proceedings. The appellant, in our opinion, must therefore be held to have continued to remain party to the reference before the Tribunal presided over by Shri Palit, its application to withdraw and its non-participation in the proceedings notwithstanding. Even non-participation of workmen would not change the legal position. Once it is held that the appellant was a party to those proceedings then there can be no difficulty in holding that S. 23 (b) would be attracted to those proceedings and if that sub-section is attracted then obviously the strike has to be held to be illegal. The Reference (No. 27 of 1960), it may be recalled, was made in May, 1960, and the Award was published on November 22, 1960: the workmen went on strike on October 4, 1960 which was clearly during the pendency of those proceedings. We are, therefore, of the view that the impugned strike was illegal and the High Court, speaking with respect, was not right in holding to the contrary. The appeal is accordingly allowed and reversing the judgment of the High Court we quash the order of the Central Government Industrial Tribunal dated April 16, 1960 as also the order of the Regional Labour Commissioner (Central) Bombay dated November 19, 1960 which had held the strike of the workmen not to be illegal. Reversing all these orders we hold that the workmens strike was illegal being in violation of S. 23 (b) of the Act. | 1[ds]The third point was very fairly not pressed by Shri Phadke because mere breach of a Standing Order could not render the strike illegal under Sections 23 and 24 of the Act. Only the first two points were pressed. In so far as Section 23 (c) is concerned Shri Phadke made a reference to the settlement, a copy of which was annexed with the writ petition in the High Court. It appears that the workers of the appellants colliery had gone on strike in the months of January/February, 1960 and efforts of the management had failed to persuade the workers to resume duty. The Regional Labour Commissioner (C) Bombay, thereupon wrote a D. O. letter dated February 4, 1960 to Shri Haldulkar, President of the Workers Union in reply to the said Presidents telegram of the same date in which the Labour Commissioner had stated that he was going to visit Nagpur on February 9, 1960 and would look into the matter. The Regional Labour Commissioner had in that letter requested Shri Haldulkar to make it convenient to see him at the office of the Conciliation Officer at Nagpur. The Regional Labour Commissioner then used his good offices in getting the matter resolved as a result of which the workers resumed their duty and got their dues etc., from the management. The report of what transpired at the time of the visit of the Regional Labour Commissioner was recorded in "annexure D", annexed to the writ petition filed in the High Court. It appears from "annexure D" that after discussing the matter with the appellant and the workmen, the Regional Labour Commissioner induced both sides to adopt a reasonable attitude and the strike was called off. The relevant portion of annexure D may here be reproduced:"..... .....It was on 10th February, 1960, that I visited Chanda and had talks with Shri Zallaram, Vice President of the Union and other important workers of the Colliery. A representative of the management Shri S. V. Kanade, Personnel Officer was also present at the time of discussion. I impressed upon the Union Officials and the workers that going on strike would not solve their problems but would on the other hand create complications and bitter relations between the Management and the workers. I also emphasised upon the Management that they should also see that the grievances of the workers were not allowed to accumulate and full justice was given to them. Considerable discussions continued on this issue and I asked the Union Officials that they would withdraw the strike immediately so that the relations between workers and management could be restored to normalcy ... ... ... The Union thereupon stated that owing to the strike the workers were likely to lose their bonus and continuity of service for purposes of annual leave. I told them that I would take up the matter with the management provided they call off the strike first to which they agree. I was also assured that they would see that such strikes are not resorted to in future and would adopt all constitutional means to get their grievances redressed5. This view of the High Court was seriously assailed before us by Shri Phadke. According to him the reference under S. 36A of the Act requiring consideration of any provision of an earlier award or settlement must relate back to the earlier reference culminating in the award or settlement and, therefore, if the appellant was a party to the original reference which resulted in the "Majumdar Award", then the appellant must necessarily be considered to be a party to the later reference of which Shri Palit was seized. And if that be so, then, the appellant, in Shri Phadkes submission, must be considered to be a party to the reference under S. 36A, notwithstanding its desire not to take part in those proceedings or even an express application by it to the Tribunal for permission to withdraw therefrom6. In our view, there is force in Shri Phadkes submission and the High Court was wrong in holding that S. 23 (b) is inapplicable to the present case. Section 36A provides:"36A Power to remove difficulties:(1) If in the opinion of the appropriate Government, any difficulty or doubt arises as to the interpretation of any provision of an award or settlement, it may refer the question to such Labour Court, Tribunal or National Tribunal as it may think fit(2) The Labour Court, Tribunal or National Tribunal to which such question is referred shall, after giving the parties an opportunity of being heard, decide such question and its decision shall be final and binding on all such parties."Now, quite clearly proceedings for removing difficulties or doubts arising as to the interpretation of any provision of the Majumdar Award must be construed to have the effect of reviving those earlier proceedings for the limited purpose of considering the removal of such difficulty or doubt. It is only by virtually reopening the proceedings of the earlier reference that the purpose and object of correct interpretation of that Award and of the removal of difficulties or doubts arising therefrom could be achieved. The legal effect of reference under S. 36A must, therefore, in our opinion be to reopen the earlier reference proceedings which terminated in the Majumdar Award,though only for the limited purpose of the interpretation of the provisions of that Award in respect of such difficulties or doubts as required removal. Now, if that be the scope of S. 36A of the Act then there can be little doubt that all parties to the original reference which resulted in the Majumdar Award must as a matter of law be deemed necessarily to be parties to the proceedings to the reference under Section 36A as well. This seems to us to be implicit in the very scheme and object of this section as would be clear from the fact that the decision of the question referred under this section has been rendered final and binding on all parties who have been given an opportunity of being heard. This does not contemplate consideration of the question whether any party was in fact feeling interested in the particular subject matter of difficulty or doubt. In this connection it has to be borne in mind that proceedings of industrial adjudication are not considered as proceedings purely between two private parties having no impact on the industry as such. Such proceedings involve larger public interest in which the industry as such (including the employer and the labour) is vitally interested. The scheme of the law of industrial adjudication designed to promote industrial peace and harmony, so as to increase production and help the growth and progress of national economy has to be considered in the background of our constitutional set-up according to which the State has to strive to secure and effectively protect a social order in which social, economic and political justice must inform all institutions of national life and the material resources of the community are so distributed as best to subserve the common good. The appellant could not, therefore, by merely expressing its desire even if that desire is expressed by presenting a formal application to withdraw from the proceeding?s cease to be a party to those proceedings so as to avoid the legal consequences which, according to legislative intendment, flow by reason of the pendency of those proceedings. The appellant, in our opinion, must therefore be held to have continued to remain party to the reference before the Tribunal presided over by Shri Palit, its application to withdraw and its non-participation in the proceedings notwithstanding. Even non-participation of workmen would not change the legal position. Once it is held that the appellant was a party to those proceedings then there can be no difficulty in holding that S. 23 (b) would be attracted to those proceedings and if that sub-section is attracted then obviously the strike has to be held to be illegal. The Reference (No. 27 of 1960), it may be recalled, was made in May, 1960, and the Award was published on November 22, 1960: the workmen went on strike on October 4, 1960 which was clearly during the pendency of those proceedings. We are, therefore, of the view that the impugned strike was illegal and the High Court, speaking with respect, was not right in holding to the contrary. The appeal is accordingly allowed and reversing the judgment of the High Court we quash the order of the Central Government Industrial Tribunal dated April 16, 1960 as also the order of the Regional Labour Commissioner (Central) Bombay dated November 19, 1960 which had held the strike of the workmen not to be illegal. Reversing all these orders we hold that the workmens strike was illegal being in violation of S. 23 (b) of the Act. | 1 | 4,061 | 1,610 | ### 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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omnibus or industrywise reference it is not necessary that the dispute must relate to each one of them or the cause of action must exist in all cases." that there was no dispute between the appellant and its workmen pending before Shri Palits Tribunal. 5. This view of the High Court was seriously assailed before us by Shri Phadke. According to him the reference under S. 36A of the Act requiring consideration of any provision of an earlier award or settlement must relate back to the earlier reference culminating in the award or settlement and, therefore, if the appellant was a party to the original reference which resulted in the "Majumdar Award", then the appellant must necessarily be considered to be a party to the later reference of which Shri Palit was seized. And if that be so, then, the appellant, in Shri Phadkes submission, must be considered to be a party to the reference under S. 36A, notwithstanding its desire not to take part in those proceedings or even an express application by it to the Tribunal for permission to withdraw therefrom. 6. In our view, there is force in Shri Phadkes submission and the High Court was wrong in holding that S. 23 (b) is inapplicable to the present case. Section 36A provides:"36A Power to remove difficulties: (1) If in the opinion of the appropriate Government, any difficulty or doubt arises as to the interpretation of any provision of an award or settlement, it may refer the question to such Labour Court, Tribunal or National Tribunal as it may think fit. (2) The Labour Court, Tribunal or National Tribunal to which such question is referred shall, after giving the parties an opportunity of being heard, decide such question and its decision shall be final and binding on all such parties." Now, quite clearly proceedings for removing difficulties or doubts arising as to the interpretation of any provision of the Majumdar Award must be construed to have the effect of reviving those earlier proceedings for the limited purpose of considering the removal of such difficulty or doubt. It is only by virtually reopening the proceedings of the earlier reference that the purpose and object of correct interpretation of that Award and of the removal of difficulties or doubts arising therefrom could be achieved. The legal effect of reference under S. 36A must, therefore, in our opinion be to reopen the earlier reference proceedings which terminated in the Majumdar Award,though only for the limited purpose of the interpretation of the provisions of that Award in respect of such difficulties or doubts as required removal. Now, if that be the scope of S. 36A of the Act then there can be little doubt that all parties to the original reference which resulted in the Majumdar Award must as a matter of law be deemed necessarily to be parties to the proceedings to the reference under Section 36A as well. This seems to us to be implicit in the very scheme and object of this section as would be clear from the fact that the decision of the question referred under this section has been rendered final and binding on all parties who have been given an opportunity of being heard. This does not contemplate consideration of the question whether any party was in fact feeling interested in the particular subject matter of difficulty or doubt. In this connection it has to be borne in mind that proceedings of industrial adjudication are not considered as proceedings purely between two private parties having no impact on the industry as such. Such proceedings involve larger public interest in which the industry as such (including the employer and the labour) is vitally interested. The scheme of the law of industrial adjudication designed to promote industrial peace and harmony, so as to increase production and help the growth and progress of national economy has to be considered in the background of our constitutional set-up according to which the State has to strive to secure and effectively protect a social order in which social, economic and political justice must inform all institutions of national life and the material resources of the community are so distributed as best to subserve the common good. The appellant could not, therefore, by merely expressing its desire even if that desire is expressed by presenting a formal application to withdraw from the proceeding?s cease to be a party to those proceedings so as to avoid the legal consequences which, according to legislative intendment, flow by reason of the pendency of those proceedings. The appellant, in our opinion, must therefore be held to have continued to remain party to the reference before the Tribunal presided over by Shri Palit, its application to withdraw and its non-participation in the proceedings notwithstanding. Even non-participation of workmen would not change the legal position. Once it is held that the appellant was a party to those proceedings then there can be no difficulty in holding that S. 23 (b) would be attracted to those proceedings and if that sub-section is attracted then obviously the strike has to be held to be illegal. The Reference (No. 27 of 1960), it may be recalled, was made in May, 1960, and the Award was published on November 22, 1960: the workmen went on strike on October 4, 1960 which was clearly during the pendency of those proceedings. We are, therefore, of the view that the impugned strike was illegal and the High Court, speaking with respect, was not right in holding to the contrary. The appeal is accordingly allowed and reversing the judgment of the High Court we quash the order of the Central Government Industrial Tribunal dated April 16, 1960 as also the order of the Regional Labour Commissioner (Central) Bombay dated November 19, 1960 which had held the strike of the workmen not to be illegal. Reversing all these orders we hold that the workmens strike was illegal being in violation of S. 23 (b) of the Act.
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that I would take up the matter with the management provided they call off the strike first to which they agree. I was also assured that they would see that such strikes are not resorted to in future and would adopt all constitutional means to get their grievances redressed5. This view of the High Court was seriously assailed before us by Shri Phadke. According to him the reference under S. 36A of the Act requiring consideration of any provision of an earlier award or settlement must relate back to the earlier reference culminating in the award or settlement and, therefore, if the appellant was a party to the original reference which resulted in the "Majumdar Award", then the appellant must necessarily be considered to be a party to the later reference of which Shri Palit was seized. And if that be so, then, the appellant, in Shri Phadkes submission, must be considered to be a party to the reference under S. 36A, notwithstanding its desire not to take part in those proceedings or even an express application by it to the Tribunal for permission to withdraw therefrom6. In our view, there is force in Shri Phadkes submission and the High Court was wrong in holding that S. 23 (b) is inapplicable to the present case. Section 36A provides:"36A Power to remove difficulties:(1) If in the opinion of the appropriate Government, any difficulty or doubt arises as to the interpretation of any provision of an award or settlement, it may refer the question to such Labour Court, Tribunal or National Tribunal as it may think fit(2) The Labour Court, Tribunal or National Tribunal to which such question is referred shall, after giving the parties an opportunity of being heard, decide such question and its decision shall be final and binding on all such parties."Now, quite clearly proceedings for removing difficulties or doubts arising as to the interpretation of any provision of the Majumdar Award must be construed to have the effect of reviving those earlier proceedings for the limited purpose of considering the removal of such difficulty or doubt. It is only by virtually reopening the proceedings of the earlier reference that the purpose and object of correct interpretation of that Award and of the removal of difficulties or doubts arising therefrom could be achieved. The legal effect of reference under S. 36A must, therefore, in our opinion be to reopen the earlier reference proceedings which terminated in the Majumdar Award,though only for the limited purpose of the interpretation of the provisions of that Award in respect of such difficulties or doubts as required removal. Now, if that be the scope of S. 36A of the Act then there can be little doubt that all parties to the original reference which resulted in the Majumdar Award must as a matter of law be deemed necessarily to be parties to the proceedings to the reference under Section 36A as well. This seems to us to be implicit in the very scheme and object of this section as would be clear from the fact that the decision of the question referred under this section has been rendered final and binding on all parties who have been given an opportunity of being heard. This does not contemplate consideration of the question whether any party was in fact feeling interested in the particular subject matter of difficulty or doubt. In this connection it has to be borne in mind that proceedings of industrial adjudication are not considered as proceedings purely between two private parties having no impact on the industry as such. Such proceedings involve larger public interest in which the industry as such (including the employer and the labour) is vitally interested. The scheme of the law of industrial adjudication designed to promote industrial peace and harmony, so as to increase production and help the growth and progress of national economy has to be considered in the background of our constitutional set-up according to which the State has to strive to secure and effectively protect a social order in which social, economic and political justice must inform all institutions of national life and the material resources of the community are so distributed as best to subserve the common good. The appellant could not, therefore, by merely expressing its desire even if that desire is expressed by presenting a formal application to withdraw from the proceeding?s cease to be a party to those proceedings so as to avoid the legal consequences which, according to legislative intendment, flow by reason of the pendency of those proceedings. The appellant, in our opinion, must therefore be held to have continued to remain party to the reference before the Tribunal presided over by Shri Palit, its application to withdraw and its non-participation in the proceedings notwithstanding. Even non-participation of workmen would not change the legal position. Once it is held that the appellant was a party to those proceedings then there can be no difficulty in holding that S. 23 (b) would be attracted to those proceedings and if that sub-section is attracted then obviously the strike has to be held to be illegal. The Reference (No. 27 of 1960), it may be recalled, was made in May, 1960, and the Award was published on November 22, 1960: the workmen went on strike on October 4, 1960 which was clearly during the pendency of those proceedings. We are, therefore, of the view that the impugned strike was illegal and the High Court, speaking with respect, was not right in holding to the contrary. The appeal is accordingly allowed and reversing the judgment of the High Court we quash the order of the Central Government Industrial Tribunal dated April 16, 1960 as also the order of the Regional Labour Commissioner (Central) Bombay dated November 19, 1960 which had held the strike of the workmen not to be illegal. Reversing all these orders we hold that the workmens strike was illegal being in violation of S. 23 (b) of the Act.
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R.V.M. Neeladri Rao & Anr Vs. Board Of Revenue, Hyderabad & Ors | limited either to 20 times that net annual income or the net income multiplied by the number of years of unexpired portion of the period of lease "whichever is less". If the unexpired portion is 26 years, as in the present case, the compensation could not be more than what it would be in the case of a perpetual lease. Section 20(2) does not say that the amount of compensation must be arrived at only by multiplying the net income by the number of years of the unexpired portion of the lease. As observed by the High Court it only envisages that this should be taken into account along with the value of the right. We find no repugnancy between Rule 1(ii) and Section 20(2) of the Act.The next question on which a good deal of stress has been laid relates to the deduction made on account of the cesses. It has been submitted that owing to Section 3(b) of the Act the estate vested in the Government and after such vesting there would be no land-holder and therefore there was none to whom cesses were to be paid. So the lessees even if originally liable to pay the cess ceased to be so liable after the vesting of the estate in the Government by virtue of Section 3(f) which provides that the relationship of a land-holder and a ryot shall, as between them, be extinguished. It is pointed out that by virtue of the provisions of Section 16(1) of the Act the land-holder or the ryot who became entitled to the ryotwari patta would be liable to pay to the Government such assessment as might be lawfully imposed on the land and these cesses were collected from the ryots by the Government. Therefore the appellants were under no liability to pay the cess after the notified date.10. Now in the patta, dated June 22, 1887, there was a provision that the lessees would pay the local cess and other cesses payable by the ryots in accordance with the rules framed by the Government previously and to be framed in the future. The High Court was right in saying that cess could not be excluded from the calculation of the net income because it had to be paid by the lessees along with the rent reserved under the lease. This is substantiated by the definition of "rent" in Section 3(ii) of the Madras Estates Land Act which under Section 2(1) of the Act becomes incorporated in it. The High Court referred also to numerous sections in the Act for the purpose of which rent includes any local tax, cess etc. and it was observed that the word "rent" was of a comprehensive nature and there was no warrant for restricting its content. Under Rule 2 it was the average net income which had to be taken into consideration. If the word "rent" is to be taken in a comprehensive sense as including taxes and cesses then the net income could only be arrived at by taking into account the cesses payable by the lessee. In our judgment cesses had to be deducted from the annual gross income in arriving at the net annual income which could form the basis of compensation.11. Lastly it has been contended that the appellants are entitled to interest on the amount of unpaid rents in the hands of the Government for the period 1950 to 1961 as under Section 55 of the Act after the notified date the land-holder is not entitled to collect any rent which accrued due to him from any ryot before and is outstanding on that date. It is the manager appointed under Section 6 who alone would be entitled to collect the said amounts together with interest. The amounts were collected but no payment was made to the appellants. On the language of Section 55 as well as under the general principles of law, it submitted, the appellants should have been held to be entitled to the payment of interest on the amounts withheld by the Government. Section 55(1) clearly provides that it is the duty of the manager appointed under Section 6 to collect not only the rent but also any interest payable thereon together with any cost which might have been decreed and he has to pay the same to the land-holder. It would appear that on the analogy of the provision an obligation existed on the part of the Government to pay interest to the land-holders in case the amounts collected were not paid as and when collected. In National Insurance Co. Ltd., Calcutta v. Life Insurance Corporation of India, the appellant carried on life insurance business in addition to other insurance business. On the passing of the Life Insurance Corporation Act, 1956, which was intended to nationalise all Life Insurance business, "its controlled business" stood vested in the Life Insurance Corporation of India from the appointed date but the company was entitled to compensation. The Life Insurance Corporation had been referred awarded certain amount as compensation out of which a set-off was to be allowed on a sum which was specified. It was held that the company was entitled to interest on the balance at 4% per annum. Reference was made in this case to a number of English and Indian decisions in which the rule has been laid down that though under the statute there is no provision for payment of interest it should, nevertheless, be awarded, the principle being that if the owner of an immovable property loses possession of it he is entitled to claim interest in place of the right to retain possession. It may be mentioned that even under the Interest Act, 1839, the power to award interest on equitable grounds was expressly saved by the proviso to 5%. In our opinion this position has not been seriously controverted on behalf of the respondents that the appellants should have been held entitled to interest at the rate of 6% per annum. | 1[ds]This contention does not appear to have been raised in this form either before the learned single judge or before the division bench of the High Court nor has it been clearly stated in the statement of case of the appellants. It can be disposed of on the short ground that since it had not been raised before the High Court it is not open to the appellants to agitate it for the first time before this Court. At any rate, there seems to be little force in the submission which has been made. It cannot be disputed that the appellants were entitled to the amount collected by the Government under Act XXX of 1947 because even after the notification of the estate under Section 3 of the Act the provisions of that Act including Section 3(4) relating to reduction of rents and the land-holder continued to remain applicable. Under Section 16 every person whether land-holder or a ryot who became entitled to ryotwari patta was liable to pay to the Government such assessment as might be lawfully imposed on the land. That assessment had to be made by way of a ryotwari settlement under Section 22. Till the settlement was made the rent payable under Act XXX of 1947, was to constitute the land revenue payable to the Government from the notified date under Section 23 of the Act. But the assessment as settled under Section 22 was a matter between the Government and the ryot and if, by virtue of the settlement, the Government was entitled to more amount than the rent which was payable under Act XXX of 1947, the appellants had no justification or right for claiming the excess amount. The right of the lessee as land-holder till terminated under Section 20 of the Act was only to receive the rents collected under Section 3(4) of Act XXX of 1947.Sub-section (2) of Section 20 provides that the person whose right has been terminated by the Government under the third proviso to sub-section (1) of the said section should be entitled to compensation from the Government which shall be determined by the Board of Revenue in such manner as may be prescribed having regard to the value of the right and the unexpired portion of the period for which the right was created. Rules have been framed in exercise of the power conferred by Section 67 read with Section 20(2) of theview of the High Court was that till the determination of the lease under the third proviso to Section 20(1) of the Act the rights which the appellants had acquired under the patta were preserved and if the Government had not undertaken to make these collections the tenants would have paid the landholder only the rents as reduced by Act XXX of 1947. The fact that the Government had made the collections did not confer higher rights upon the appellants. After referring to the provisions in Section 23 that the land revenue payable to the Government with effect from the notified date shall, until the ryotwari settlement effected in pursuance of Section 22 had been brought into force in the estate, be calculated in the manner set out in the section the question was examined by the High Court whether the rent that could be collected from the lease-hold land would fall within the connotation of the land revenue payable to the Government. Its considered opinion was that the rent payable to the land-holder fell outside the range of Section 22. Therefore only the rent as fixed under Act XXX of 1947, in the three preceding years could be taken into account. Its must be remembered that the settlement rates represent what is payable to the Government as revenue in respect of the land granted on patta by the Government in the ryotwari settlement. They do not represent what is due to persons like the appellants from their tenants. We consider that it is not possible to equate the rents payable by the tenants to the appellants with the land revenue payable to the Government. No exception could thus be taken to the manner and the measure of computingunexpired portion of the lease, in the present case, was nearly 26 years. It is submitted that Rule 1(ii) itself is contrary to the intendment of Section 20(2) of the Act. In this connection it is noteworthy that Section 20(2) of the Act simply says that the rules must be framed having regard to the value of the right and the unexpired portion the period for which the right was created. That did not, in any way, fetter the power of the rule making authority to frame Rule 1(ii) in the manner in which it has been done. Even where the lease creates a perpetual right the compensation payable has to be equal to 20 times the net annual income. Where it is created for a specified number of years it has to be limited either to 20 times that net annual income or the net income multiplied by the number of years of unexpired portion of the period of lease "whichever is less". If the unexpired portion is 26 years, as in the present case, the compensation could not be more than what it would be in the case of a perpetual lease. Section 20(2) does not say that the amount of compensation must be arrived at only by multiplying the net income by the number of years of the unexpired portion of the lease. As observed by the High Court it only envisages that this should be taken into account along with the value of the right. We find no repugnancy between Rule 1(ii) and Section 20(2) of the Act.Now in the patta, dated June 22, 1887, there was a provision that the lessees would pay the local cess and other cesses payable by the ryots in accordance with the rules framed by the Government previously and to be framed in the future. The High Court was right in saying that cess could not be excluded from the calculation of the net income because it had to be paid by the lessees along with the rent reserved under the lease. This is substantiated by the definition of "rent" in Section 3(ii) of the Madras Estates Land Act which under Section 2(1) of the Act becomes incorporated in it. The High Court referred also to numerous sections in the Act for the purpose of which rent includes any local tax, cess etc. and it was observed that the word "rent" was of a comprehensive nature and there was no warrant for restricting its content. Under Rule 2 it was the average net income which had to be taken into consideration. If the word "rent" is to be taken in a comprehensive sense as including taxes and cesses then the net income could only be arrived at by taking into account the cesses payable by the lessee. In our judgment cesses had to be deducted from the annual gross income in arriving at the net annual income which could form the basis of55(1) clearly provides that it is the duty of the manager appointed under Section 6 to collect not only the rent but also any interest payable thereon together with any cost which might have been decreed and he has to pay the same to theIt would appear that on the analogy of the provision an obligation existed on the part of the Government to pay interest to thein case the amounts collected were not paid as and when collected. In National Insurance Co. Ltd., Calcutta v. Life Insurance Corporation of India, the appellant carried on life insurance business in addition to other insurance business. On the passing of the Life Insurance Corporation Act, 1956, which was intended to nationalise all Life Insurance business, "its controlled business" stood vested in the Life Insurance Corporation of India from the appointed date but the company was entitled to compensation. The Life Insurance Corporation had been referred awarded certain amount as compensation out of which awas to be allowed on a sum which was specified. It was held that the company was entitled to interest on the balance at 4% per annum. Reference was made in this case to a number of English and Indian decisions in which the rule has been laid down that though under the statute there is no provision for payment of interest it should, nevertheless, be awarded, the principle being that if the owner of an immovable property loses possession of it he is entitled to claim interest in place of the right to retain possession. It may be mentioned that even under the Interest Act, 1839, the power to award interest on equitable grounds was expressly saved by the proviso to 5%. In our opinion this position has not been seriously controverted on behalf of the respondents that the appellants should have been held entitled to interest at the rate of 6% per annum. | 1 | 3,875 | 1,633 | ### 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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limited either to 20 times that net annual income or the net income multiplied by the number of years of unexpired portion of the period of lease "whichever is less". If the unexpired portion is 26 years, as in the present case, the compensation could not be more than what it would be in the case of a perpetual lease. Section 20(2) does not say that the amount of compensation must be arrived at only by multiplying the net income by the number of years of the unexpired portion of the lease. As observed by the High Court it only envisages that this should be taken into account along with the value of the right. We find no repugnancy between Rule 1(ii) and Section 20(2) of the Act.The next question on which a good deal of stress has been laid relates to the deduction made on account of the cesses. It has been submitted that owing to Section 3(b) of the Act the estate vested in the Government and after such vesting there would be no land-holder and therefore there was none to whom cesses were to be paid. So the lessees even if originally liable to pay the cess ceased to be so liable after the vesting of the estate in the Government by virtue of Section 3(f) which provides that the relationship of a land-holder and a ryot shall, as between them, be extinguished. It is pointed out that by virtue of the provisions of Section 16(1) of the Act the land-holder or the ryot who became entitled to the ryotwari patta would be liable to pay to the Government such assessment as might be lawfully imposed on the land and these cesses were collected from the ryots by the Government. Therefore the appellants were under no liability to pay the cess after the notified date.10. Now in the patta, dated June 22, 1887, there was a provision that the lessees would pay the local cess and other cesses payable by the ryots in accordance with the rules framed by the Government previously and to be framed in the future. The High Court was right in saying that cess could not be excluded from the calculation of the net income because it had to be paid by the lessees along with the rent reserved under the lease. This is substantiated by the definition of "rent" in Section 3(ii) of the Madras Estates Land Act which under Section 2(1) of the Act becomes incorporated in it. The High Court referred also to numerous sections in the Act for the purpose of which rent includes any local tax, cess etc. and it was observed that the word "rent" was of a comprehensive nature and there was no warrant for restricting its content. Under Rule 2 it was the average net income which had to be taken into consideration. If the word "rent" is to be taken in a comprehensive sense as including taxes and cesses then the net income could only be arrived at by taking into account the cesses payable by the lessee. In our judgment cesses had to be deducted from the annual gross income in arriving at the net annual income which could form the basis of compensation.11. Lastly it has been contended that the appellants are entitled to interest on the amount of unpaid rents in the hands of the Government for the period 1950 to 1961 as under Section 55 of the Act after the notified date the land-holder is not entitled to collect any rent which accrued due to him from any ryot before and is outstanding on that date. It is the manager appointed under Section 6 who alone would be entitled to collect the said amounts together with interest. The amounts were collected but no payment was made to the appellants. On the language of Section 55 as well as under the general principles of law, it submitted, the appellants should have been held to be entitled to the payment of interest on the amounts withheld by the Government. Section 55(1) clearly provides that it is the duty of the manager appointed under Section 6 to collect not only the rent but also any interest payable thereon together with any cost which might have been decreed and he has to pay the same to the land-holder. It would appear that on the analogy of the provision an obligation existed on the part of the Government to pay interest to the land-holders in case the amounts collected were not paid as and when collected. In National Insurance Co. Ltd., Calcutta v. Life Insurance Corporation of India, the appellant carried on life insurance business in addition to other insurance business. On the passing of the Life Insurance Corporation Act, 1956, which was intended to nationalise all Life Insurance business, "its controlled business" stood vested in the Life Insurance Corporation of India from the appointed date but the company was entitled to compensation. The Life Insurance Corporation had been referred awarded certain amount as compensation out of which a set-off was to be allowed on a sum which was specified. It was held that the company was entitled to interest on the balance at 4% per annum. Reference was made in this case to a number of English and Indian decisions in which the rule has been laid down that though under the statute there is no provision for payment of interest it should, nevertheless, be awarded, the principle being that if the owner of an immovable property loses possession of it he is entitled to claim interest in place of the right to retain possession. It may be mentioned that even under the Interest Act, 1839, the power to award interest on equitable grounds was expressly saved by the proviso to 5%. In our opinion this position has not been seriously controverted on behalf of the respondents that the appellants should have been held entitled to interest at the rate of 6% per annum.
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with effect from the notified date shall, until the ryotwari settlement effected in pursuance of Section 22 had been brought into force in the estate, be calculated in the manner set out in the section the question was examined by the High Court whether the rent that could be collected from the lease-hold land would fall within the connotation of the land revenue payable to the Government. Its considered opinion was that the rent payable to the land-holder fell outside the range of Section 22. Therefore only the rent as fixed under Act XXX of 1947, in the three preceding years could be taken into account. Its must be remembered that the settlement rates represent what is payable to the Government as revenue in respect of the land granted on patta by the Government in the ryotwari settlement. They do not represent what is due to persons like the appellants from their tenants. We consider that it is not possible to equate the rents payable by the tenants to the appellants with the land revenue payable to the Government. No exception could thus be taken to the manner and the measure of computingunexpired portion of the lease, in the present case, was nearly 26 years. It is submitted that Rule 1(ii) itself is contrary to the intendment of Section 20(2) of the Act. In this connection it is noteworthy that Section 20(2) of the Act simply says that the rules must be framed having regard to the value of the right and the unexpired portion the period for which the right was created. That did not, in any way, fetter the power of the rule making authority to frame Rule 1(ii) in the manner in which it has been done. Even where the lease creates a perpetual right the compensation payable has to be equal to 20 times the net annual income. Where it is created for a specified number of years it has to be limited either to 20 times that net annual income or the net income multiplied by the number of years of unexpired portion of the period of lease "whichever is less". If the unexpired portion is 26 years, as in the present case, the compensation could not be more than what it would be in the case of a perpetual lease. Section 20(2) does not say that the amount of compensation must be arrived at only by multiplying the net income by the number of years of the unexpired portion of the lease. As observed by the High Court it only envisages that this should be taken into account along with the value of the right. We find no repugnancy between Rule 1(ii) and Section 20(2) of the Act.Now in the patta, dated June 22, 1887, there was a provision that the lessees would pay the local cess and other cesses payable by the ryots in accordance with the rules framed by the Government previously and to be framed in the future. The High Court was right in saying that cess could not be excluded from the calculation of the net income because it had to be paid by the lessees along with the rent reserved under the lease. This is substantiated by the definition of "rent" in Section 3(ii) of the Madras Estates Land Act which under Section 2(1) of the Act becomes incorporated in it. The High Court referred also to numerous sections in the Act for the purpose of which rent includes any local tax, cess etc. and it was observed that the word "rent" was of a comprehensive nature and there was no warrant for restricting its content. Under Rule 2 it was the average net income which had to be taken into consideration. If the word "rent" is to be taken in a comprehensive sense as including taxes and cesses then the net income could only be arrived at by taking into account the cesses payable by the lessee. In our judgment cesses had to be deducted from the annual gross income in arriving at the net annual income which could form the basis of55(1) clearly provides that it is the duty of the manager appointed under Section 6 to collect not only the rent but also any interest payable thereon together with any cost which might have been decreed and he has to pay the same to theIt would appear that on the analogy of the provision an obligation existed on the part of the Government to pay interest to thein case the amounts collected were not paid as and when collected. In National Insurance Co. Ltd., Calcutta v. Life Insurance Corporation of India, the appellant carried on life insurance business in addition to other insurance business. On the passing of the Life Insurance Corporation Act, 1956, which was intended to nationalise all Life Insurance business, "its controlled business" stood vested in the Life Insurance Corporation of India from the appointed date but the company was entitled to compensation. The Life Insurance Corporation had been referred awarded certain amount as compensation out of which awas to be allowed on a sum which was specified. It was held that the company was entitled to interest on the balance at 4% per annum. Reference was made in this case to a number of English and Indian decisions in which the rule has been laid down that though under the statute there is no provision for payment of interest it should, nevertheless, be awarded, the principle being that if the owner of an immovable property loses possession of it he is entitled to claim interest in place of the right to retain possession. It may be mentioned that even under the Interest Act, 1839, the power to award interest on equitable grounds was expressly saved by the proviso to 5%. In our opinion this position has not been seriously controverted on behalf of the respondents that the appellants should have been held entitled to interest at the rate of 6% per annum.
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M/S CANON INDIA PRIVATE LIMITED Vs. COMMISSIONER OF CUSTOMS | the Official Gazette, entrust either conditionally or unconditionally to any officer of the Central or the State Government or a local authority any functions of the Board or any officer of customs under this Act. 21. If it was intended that officers of the Directorate of Revenue Intelligence who are officers of Central Government should be entrusted with functions of the Customs officers, it was imperative that the Central Government should have done so in exercise of its power under Section 6 of the Act. The reason why such a power is conferred on the Central Government is obvious and that is because the Central Government is the authority which appoints both the officers of the Directorate of Revenue Intelligence which is set up under the Notification dated 04.12.1957 issued by the Ministry of Finance and Customs officers who, till 11.5.2002, were appointed by the Central Government. The notification which purports to entrust functions as proper officer under the Customs Act has been issued by the Central Board of Excise and Customs in exercise of non-existing power under Section 2 (34) of the Customs Act. The notification is obviously invalid having been issued by an authority which had no power to do so in purported exercise of powers under a section which does not confer any such power. 22. In the above context, it would be useful to refer to the decision of this Court in the case of Commissioner of Customs vs. Sayed Ali and Another (2011) 3 SCC 537 wherein the proper officer in respect of the jurisdictional area was considered. The consideration made is as hereunder:- 16. It was submitted that in the instant case, the import manifest and the bill of entry were filed before the Additional Collector of Customs (Imports), Mumbai; the bill of entry was duly assessed, and the benefit of the exemption was extended, subject to execution of a bond by the importer which was duly executed undertaking the obligation of export. The learned counsel argued that the function of the preventive staff is confined to goods which are not manifested as in respect of manifested goods, where the bills of entry are to be filed, the entire function of assessment, clearance, etc. is carried out by the appraising officers functioning under the Commissioner of Customs (Imports). 17. Before adverting to the rival submissions, it would be expedient to survey the relevant provisions of the Act. Section 28 of the Act, which is relevant for our purpose, provides for issue of notice for payment of duty that has not been paid, or has been short-levied or erroneously refunded, and provides that: 28. Notice for payment of duties, interest, etc. – (1) When any duty has not been levied or has been short-levied or erroneously refunded, or when any interest payable has not been paid, part paid or erroneously refunded, the proper officer may,- (a) in the case of any import made by any individual for his personal use or by Government or by any educational, research or charitable institution or hospital, within one year; (b) in any other case, within six months, from the relevant date, serve notice on the person chargeable with the duty or interest which has not been levied or charged or which has been so short- levied or part paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice: Provided that where any duty has not been levied or has been short-levied or the interest has not been charged or has been part paid or the duty or interest has been erroneously refunded by reason of collusion or any wilful mis-statement or suppression of facts by the importer or the exporter or the agent or employee of the importer or exporter, the provisions of this sub-section shall have effect as if for the words one year and six months, the words five years were substituted. 18. It is plain from the provision that the proper officer being subjectively satisfied on the basis of the material that may be with him that customs duty has not been levied or short levied or erroneously refunded on an import made by any individual for his personal use or by the Government or by any educational, research or charitable institution or hospital, within one year and in all other cases within six months from the relevant date, may cause service of notice on the person chargeable, requiring him to show cause why he should not pay the amount specified in the notice. It is evident that the notice under the said provision has to be issued by the proper officer. 19. Section 2(34) of the Act defines a proper officer, thus: 2. Definitions.- (34) proper officer, in relation to any functions to be performed under this Act, means the officer of customs who is assigned those functions by the Board or the Commissioner of Customs; It is clear from a mere look at the provision that only such officers of customs who have been assigned specific functions would be proper officers in terms of Section 2(34) the Act. Specific entrustment of function by either the Board or the Commissioner of Customs is therefore, the governing test to determine whether an officer of customs is the proper officer. 20. From a conjoint reading of Sections 2(34) and 28 of the Act, it is manifest that only such a Customs Officer who has been assigned the specific functions of assessment and re- assessment of duty in the jurisdictional area where the import concerned has been affected, by either the Board or the Commissioner of Customs, in terms of Section 2(34) of the Act is competent to issue notice undersection 28 of the Act. Any other reading of Section 28 would render the provisions of Section 2(34) of the Act otiose inasmuch as the test contemplated under Section 2(34) of the Act is that of specific conferment of such functions. | 1[ds]It is necessary that the answer must flow from the power conferred by the statute i.e. under Section 28(4) of the Act. This Section empowers the recovery of duty not paid, part paid or erroneously refunded by reason of collusion or any wilful mis-statement or suppression of facts and confers the power of recovery on the proper officer. The obvious intention is to confer the power to recover such duties not on any proper officer but only on the proper officer. This Court in Consolidated Coffee Ltd. and Another vs. Coffee Board, Bangalore (1980) 3 SCC 358 has held:-14. ...Secondly, and more importantly, the user of the definite article the before the word agreement is, in our view, very significant. Parliament has not said an agreement or any agreement for or in relation to such export and in the context the expression the agreement would refer to that agreement which is implicit in the sale occasioning the export.In Shri Ishar Alloy Steels Ltd. vs. Jayaswals Neco Ltd. (2001) 3 SCC 609 has held:-9. ...The is the word used before nouns, with a specifying or particularising effect as opposed to the indefinite or generalizing force of a or an. It determines what particular thing is meant; that is, what particular thing we are to assume to be meant. The is always mentioned to denote a particular thing or a person.12. The nature of the power to recover the duty, not paid or short paid after the goods have been assessed and cleared for import, is broadly a power to review the earlier decision of assessment. Such a power is not inherent in any authority. Indeed, it has been conferred by Section 28 and other related provisions. The power has been so conferred specifically on the proper officer which must necessarily mean the proper officer who, in the first instance, assessed and cleared the goods i.e. the Deputy Commissioner Appraisal Group. Indeed, this must be so because no fiscal statute has been shown to us where the power to re-open assessment or recover duties which have escaped assessment has been conferred on an officer other than the officer of the rank of the officer who initially took the decision to assess the goods.13. Where the statute confers the same power to perform an act on different officers, as in this case, the two officers, especially when they belong to different departments, cannot exercise their powers in the same case. Where one officer has exercised his powers of assessment, the power to order re-assessment must also be exercised by the same officer or his successor and not by another officer of another department though he is designated to be an officer of the same rank. In our view, this would result into an anarchical and unruly operation of a statute which is not contemplated by any canon of construction of statute.14. It is well known that when a statute directs that the things be done in a certain way, it must be done in that way alone. As in this case, when the statute directs that the proper officer can determine duty not levied/not paid, it does not mean any proper officer but that proper officer alone. We find it completely impermissible to allow an officer, who has not passed the original order of assessment, to re-open the assessment on the grounds that the duty was not paid/not levied, by the original officer who had decided to clear the goods and who was competent and authorised to make the assessment. The nature of the power conferred by Section 28 (4) to recover duties which have escaped assessment is in the nature of an administrative review of an act. The section must therefore be construed as conferring the power of such review on the same officer or his successor or any other officer who has been assigned the function of assessment. In other words, an officer who did the assessment, could only undertake re-assessment [which is involved in Section 28 (4)].15. It is obvious that the re-assessment and recovery of duties i.e. contemplated by Section 28(4) is by the same authority and not by any superior authority such as Appellate or Revisional Authority. It is, therefore, clear to us that the Additional Director General of DRI was not the proper officer to exercise the power under Section 28(4) and the initiation of the recovery proceedings in the present case is without any jurisdiction and liable to be set aside.The Additional Director General can be considered to be a proper officer only if it is shown that he was a Customs officer under the Customs Act. In addition, that he was entrusted with the functions of the proper officer under Section 6 of the Customs Act. The Additional Director General of the DRI can be considered to be a Customs officer only if he is shown to have been appointed as Customs officer under the Customs Act.This notification shows that all Additional Directors General, mentioned in Column (2), are appointed as Commissioners of Customs.19. It appears that a Deputy Commissioner or Assistant Commissioner of Customs has been entrusted with the functions under Section 28, vide Sl. No.3 above. By reason of the fact that the functions are assigned to officers referred to in Column (3) and those officers above the rank of officers mentioned in Column (2), the Commissioner of Customs would be included as an officer entitled to perform the function under Section 28 of the Act conferred on a Deputy Commissioner or Assistant Commissioner but the notification appears to be ill-founded. The notification is purported to have been issued in exercise of powers under sub-Section (34) of Section 2 of the Customs Act. This section does not confer any powers on any authority to entrust any functions to officers.21. If it was intended that officers of the Directorate of Revenue Intelligence who are officers of Central Government should be entrusted with functions of the Customs officers, it was imperative that the Central Government should have done so in exercise of its power under Section 6 of the Act. The reason why such a power is conferred on the Central Government is obvious and that is because the Central Government is the authority which appoints both the officers of the Directorate of Revenue Intelligence which is set up under the Notification dated 04.12.1957 issued by the Ministry of Finance and Customs officers who, till 11.5.2002, were appointed by the Central Government. The notification which purports to entrust functions as proper officer under the Customs Act has been issued by the Central Board of Excise and Customs in exercise of non-existing power under Section 2 (34) of the Customs Act. The notification is obviously invalid having been issued by an authority which had no power to do so in purported exercise of powers under a section which does not confer any such power.22. In the above context, it would be useful to refer to the decision of this Court in the case of Commissioner of Customs vs. Sayed Ali and Another (2011) 3 SCC 537 wherein the proper officer in respect of the jurisdictional area was considered. The consideration made is as hereunder:-16. It was submitted that in the instant case, the import manifest and the bill of entry were filed before the Additional Collector of Customs (Imports), Mumbai; the bill of entry was duly assessed, and the benefit of the exemption was extended, subject to execution of a bond by the importer which was duly executed undertaking the obligation of export. The learned counsel argued that the function of the preventive staff is confined to goods which are not manifested as in respect of manifested goods, where the bills of entry are to be filed, the entire function of assessment, clearance, etc. is carried out by the appraising officers functioning under the Commissioner of Customs (Imports).17. Before adverting to the rival submissions, it would be expedient to survey the relevant provisions of the Act. Section 28 of the Act, which is relevant for our purpose, provides for issue of notice for payment of duty that has not been paid, or has been short-levied or erroneously refunded, and provides that:28. Notice for payment of duties, interest, etc. – (1) When any duty has not been levied or has been short-levied or erroneously refunded, or when any interest payable has not been paid, part paid or erroneously refunded, the proper officer may,-(a) in the case of any import made by any individual for his personal use or by Government or by any educational, research or charitable institution or hospital, within one year;(b) in any other case, within six months,from the relevant date, serve notice on the person chargeable with the duty or interest which has not been levied or charged or which has been so short- levied or part paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice:Provided that where any duty has not been levied or has been short-levied or the interest has not been charged or has been part paid or the duty or interest has been erroneously refunded by reason of collusion or any wilful mis-statement or suppression of facts by the importer or the exporter or the agent or employee of the importer or exporter, the provisions of this sub-section shall have effect as if for the words one year and six months, the words five years were substituted.18. It is plain from the provision that the proper officer being subjectively satisfied on the basis of the material that may be with him that customs duty has not been levied or short levied or erroneously refunded on an import made by any individual for his personal use or by the Government or by any educational, research or charitable institution or hospital, within one year and in all other cases within six months from the relevant date, may cause service of notice on the person chargeable, requiring him to show cause why he should not pay the amount specified in the notice. It is evident that the notice under the said provision has to be issued by the proper officer.19. Section 2(34) of the Act defines a proper officer, thus:(34) proper officer, in relation to any functions to be performed under this Act, means the officer of customs who is assigned those functions by the Board or the Commissioner of Customs;It is clear from a mere look at the provision that only such officers of customs who have been assigned specific functions would be proper officers in terms of Section 2(34) the Act. Specific entrustment of function by either the Board or the Commissioner of Customs is therefore, the governing test to determine whether an officer of customs is the proper officer.20. From a conjoint reading of Sections 2(34) and 28 of the Act, it is manifest that only such a Customs Officer who has been assigned the specific functions of assessment and re- assessment of duty in the jurisdictional area where the import concerned has been affected, by either the Board or the Commissioner of Customs, in terms of Section 2(34) of the Act is competent to issue notice undersection 28 of the Act. Any other reading of Section 28 would render the provisions of Section 2(34) of the Act otiose inasmuch as the test contemplated under Section 2(34) of the Act is that of specific conferment of such functions.23. We, therefore, hold that the entire proceeding in the present case initiated by the Additional Director General of the DRI by issuing show cause notices in all the matters before us are invalid without any authority of law and liable to be set-aside and the ensuing demands are also set- aside.24. It is strictly not necessary to decide the question on limitation but we intend to do so since parties have elaborately relied on disclosures made before the Customs officer on that issue. The show cause notice was issued on 19.8.2014. Under Section 28(4), such a show cause notice must be issued within five years from the relevant date which means the date on which the goods were assessed and cleared, in case the duty was not paid or short paid or erroneously refunded by reason of collusion or any wilful mis-statement or suppression of facts.25. The case was presented for scrutiny of the Customs officers on 20.3.2012 along with the Bill of Entry and literature consisting of specifications of the cameras.26. The Bill of Entry made a statement that these are Digital Still Image Video Camera packed for retail sale (COOLPIX S4300, S2600 etc.). This was supported by literature which clearly stated that … the single maximum recording time for a single movie is 29 minutes, even when there is sufficient free space on the memory card for longer recording. This meant that even if the camera could record more than 29 minutes when it had sufficient free space (which depends on the capacity of the card providing extended memory) the maximum time for which it could record a single sequence was 29 minutes.27. In other words, the camera could record more than one single sequence but not 30 minutes and more in a single sequence. It is obvious that the Deputy Commissioner took the view that the camera complied with the requirement of exemption i.e. it could only record up to less than 30 minutes in a single sequence. At this juncture, it is not relevant to see whether the Deputy Commissioner was right or not in taking this decision to clear the goods as exempted goods. What is important is to see whether the importers made any wilful mis-statement or suppression of facts and induced the delivery of goods.28. It is pertinent to note that the importer had asked for a first check and had shown the cameras and the cameras were offered on 20.3.2012 along with Bill of Entry and literature detailing specifications of models. The camera could have been operated to see the length of time of the single sequence and whether recording of the single sequence exhausts the total memory of the camera (including extended memory) and whether the cameras were eligible for exemption. It is difficult in such circumstances to infer that there was any wilful mis- statement of facts. In these circumstances, it must, therefore, follow that the extended period of limitation of five years was not available to any authority to re-open under Section 28(4).29. In this view of the matter, we consider it unnecessary to answer the issue whether the cameras that were cleared on the basis that they were exempted from customs duty under Exemption Notification No.15/2012 were in fact eligible for the exemption or not. The goods must be taken to have been validly cleared by the Customs officer.30. We might note that cameras with similar specifications have been treated as exempted under the Explanatory Note to the Combined Nomenclature of the European communities. It is important to add that the same cameras have been considered to be eligible for exemption before 17.03.2012 and after 30.04.2015 under the exemption Notifications issued under the Customs Act read with Chapter 84 & 85 (First Schedule) of Customs Tariff Act, 1975. | 1 | 3,608 | 2,814 | ### 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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the Official Gazette, entrust either conditionally or unconditionally to any officer of the Central or the State Government or a local authority any functions of the Board or any officer of customs under this Act. 21. If it was intended that officers of the Directorate of Revenue Intelligence who are officers of Central Government should be entrusted with functions of the Customs officers, it was imperative that the Central Government should have done so in exercise of its power under Section 6 of the Act. The reason why such a power is conferred on the Central Government is obvious and that is because the Central Government is the authority which appoints both the officers of the Directorate of Revenue Intelligence which is set up under the Notification dated 04.12.1957 issued by the Ministry of Finance and Customs officers who, till 11.5.2002, were appointed by the Central Government. The notification which purports to entrust functions as proper officer under the Customs Act has been issued by the Central Board of Excise and Customs in exercise of non-existing power under Section 2 (34) of the Customs Act. The notification is obviously invalid having been issued by an authority which had no power to do so in purported exercise of powers under a section which does not confer any such power. 22. In the above context, it would be useful to refer to the decision of this Court in the case of Commissioner of Customs vs. Sayed Ali and Another (2011) 3 SCC 537 wherein the proper officer in respect of the jurisdictional area was considered. The consideration made is as hereunder:- 16. It was submitted that in the instant case, the import manifest and the bill of entry were filed before the Additional Collector of Customs (Imports), Mumbai; the bill of entry was duly assessed, and the benefit of the exemption was extended, subject to execution of a bond by the importer which was duly executed undertaking the obligation of export. The learned counsel argued that the function of the preventive staff is confined to goods which are not manifested as in respect of manifested goods, where the bills of entry are to be filed, the entire function of assessment, clearance, etc. is carried out by the appraising officers functioning under the Commissioner of Customs (Imports). 17. Before adverting to the rival submissions, it would be expedient to survey the relevant provisions of the Act. Section 28 of the Act, which is relevant for our purpose, provides for issue of notice for payment of duty that has not been paid, or has been short-levied or erroneously refunded, and provides that: 28. Notice for payment of duties, interest, etc. – (1) When any duty has not been levied or has been short-levied or erroneously refunded, or when any interest payable has not been paid, part paid or erroneously refunded, the proper officer may,- (a) in the case of any import made by any individual for his personal use or by Government or by any educational, research or charitable institution or hospital, within one year; (b) in any other case, within six months, from the relevant date, serve notice on the person chargeable with the duty or interest which has not been levied or charged or which has been so short- levied or part paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice: Provided that where any duty has not been levied or has been short-levied or the interest has not been charged or has been part paid or the duty or interest has been erroneously refunded by reason of collusion or any wilful mis-statement or suppression of facts by the importer or the exporter or the agent or employee of the importer or exporter, the provisions of this sub-section shall have effect as if for the words one year and six months, the words five years were substituted. 18. It is plain from the provision that the proper officer being subjectively satisfied on the basis of the material that may be with him that customs duty has not been levied or short levied or erroneously refunded on an import made by any individual for his personal use or by the Government or by any educational, research or charitable institution or hospital, within one year and in all other cases within six months from the relevant date, may cause service of notice on the person chargeable, requiring him to show cause why he should not pay the amount specified in the notice. It is evident that the notice under the said provision has to be issued by the proper officer. 19. Section 2(34) of the Act defines a proper officer, thus: 2. Definitions.- (34) proper officer, in relation to any functions to be performed under this Act, means the officer of customs who is assigned those functions by the Board or the Commissioner of Customs; It is clear from a mere look at the provision that only such officers of customs who have been assigned specific functions would be proper officers in terms of Section 2(34) the Act. Specific entrustment of function by either the Board or the Commissioner of Customs is therefore, the governing test to determine whether an officer of customs is the proper officer. 20. From a conjoint reading of Sections 2(34) and 28 of the Act, it is manifest that only such a Customs Officer who has been assigned the specific functions of assessment and re- assessment of duty in the jurisdictional area where the import concerned has been affected, by either the Board or the Commissioner of Customs, in terms of Section 2(34) of the Act is competent to issue notice undersection 28 of the Act. Any other reading of Section 28 would render the provisions of Section 2(34) of the Act otiose inasmuch as the test contemplated under Section 2(34) of the Act is that of specific conferment of such functions.
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the importer or the exporter or the agent or employee of the importer or exporter, the provisions of this sub-section shall have effect as if for the words one year and six months, the words five years were substituted.18. It is plain from the provision that the proper officer being subjectively satisfied on the basis of the material that may be with him that customs duty has not been levied or short levied or erroneously refunded on an import made by any individual for his personal use or by the Government or by any educational, research or charitable institution or hospital, within one year and in all other cases within six months from the relevant date, may cause service of notice on the person chargeable, requiring him to show cause why he should not pay the amount specified in the notice. It is evident that the notice under the said provision has to be issued by the proper officer.19. Section 2(34) of the Act defines a proper officer, thus:(34) proper officer, in relation to any functions to be performed under this Act, means the officer of customs who is assigned those functions by the Board or the Commissioner of Customs;It is clear from a mere look at the provision that only such officers of customs who have been assigned specific functions would be proper officers in terms of Section 2(34) the Act. Specific entrustment of function by either the Board or the Commissioner of Customs is therefore, the governing test to determine whether an officer of customs is the proper officer.20. From a conjoint reading of Sections 2(34) and 28 of the Act, it is manifest that only such a Customs Officer who has been assigned the specific functions of assessment and re- assessment of duty in the jurisdictional area where the import concerned has been affected, by either the Board or the Commissioner of Customs, in terms of Section 2(34) of the Act is competent to issue notice undersection 28 of the Act. Any other reading of Section 28 would render the provisions of Section 2(34) of the Act otiose inasmuch as the test contemplated under Section 2(34) of the Act is that of specific conferment of such functions.23. We, therefore, hold that the entire proceeding in the present case initiated by the Additional Director General of the DRI by issuing show cause notices in all the matters before us are invalid without any authority of law and liable to be set-aside and the ensuing demands are also set- aside.24. It is strictly not necessary to decide the question on limitation but we intend to do so since parties have elaborately relied on disclosures made before the Customs officer on that issue. The show cause notice was issued on 19.8.2014. Under Section 28(4), such a show cause notice must be issued within five years from the relevant date which means the date on which the goods were assessed and cleared, in case the duty was not paid or short paid or erroneously refunded by reason of collusion or any wilful mis-statement or suppression of facts.25. The case was presented for scrutiny of the Customs officers on 20.3.2012 along with the Bill of Entry and literature consisting of specifications of the cameras.26. The Bill of Entry made a statement that these are Digital Still Image Video Camera packed for retail sale (COOLPIX S4300, S2600 etc.). This was supported by literature which clearly stated that … the single maximum recording time for a single movie is 29 minutes, even when there is sufficient free space on the memory card for longer recording. This meant that even if the camera could record more than 29 minutes when it had sufficient free space (which depends on the capacity of the card providing extended memory) the maximum time for which it could record a single sequence was 29 minutes.27. In other words, the camera could record more than one single sequence but not 30 minutes and more in a single sequence. It is obvious that the Deputy Commissioner took the view that the camera complied with the requirement of exemption i.e. it could only record up to less than 30 minutes in a single sequence. At this juncture, it is not relevant to see whether the Deputy Commissioner was right or not in taking this decision to clear the goods as exempted goods. What is important is to see whether the importers made any wilful mis-statement or suppression of facts and induced the delivery of goods.28. It is pertinent to note that the importer had asked for a first check and had shown the cameras and the cameras were offered on 20.3.2012 along with Bill of Entry and literature detailing specifications of models. The camera could have been operated to see the length of time of the single sequence and whether recording of the single sequence exhausts the total memory of the camera (including extended memory) and whether the cameras were eligible for exemption. It is difficult in such circumstances to infer that there was any wilful mis- statement of facts. In these circumstances, it must, therefore, follow that the extended period of limitation of five years was not available to any authority to re-open under Section 28(4).29. In this view of the matter, we consider it unnecessary to answer the issue whether the cameras that were cleared on the basis that they were exempted from customs duty under Exemption Notification No.15/2012 were in fact eligible for the exemption or not. The goods must be taken to have been validly cleared by the Customs officer.30. We might note that cameras with similar specifications have been treated as exempted under the Explanatory Note to the Combined Nomenclature of the European communities. It is important to add that the same cameras have been considered to be eligible for exemption before 17.03.2012 and after 30.04.2015 under the exemption Notifications issued under the Customs Act read with Chapter 84 & 85 (First Schedule) of Customs Tariff Act, 1975.
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M/S.Veet Rag Homes Private Limited Vs. Union of India, Through Secretary, Ministry of Mines & Others | sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself. This principle has been reiterated in CIT v. AnjumM.H. Ghaswala, SCC at p. 644; Captain Sube Singh v. Lt. Governor of Delhi and State of U.P. v. SingharaSingh.The observation in the order that it may be worthwhile to consider the respondent no.3s case because it is an emerging entrepreneur is extraneous to the provisions of the Act, which require the State Government only to take into account the factors or attributes referred to in section 11, sub-sections (2) and (3). It is not possible to accept the justification that because the respondents are said to have taken steps to establish the project, they are entitled to the mining lease. Rule 35 of the Mineral Concession Rules prescribe that the end use of the mineral is a factor that may be taken into account. While doing so, it was not permissible for the State Government to take into account the mere intention of the respondent no.3 to set up an alumina plant in Kolhapur district in which they are said to have supposedly invested Rs.2,000 crores and which will generate employment for 800 to 900 people. The end use contemplated by rule 35 is the end use of mineral by the applicant. That is, the use to which the applicant intends to put the mineral i.e. for example iron ore will be used for steel and so on. This may of course include sale to another. The location of the use such as whether it will be used in a particular district is not a relevant factor.9. Lastly, in paragraph 7 of the order, the Minister for Mining has classified the applicants into groups `A and `B. Group `A comprises the applicants who are financially sound but do not have experience of mining. Seven applicants have been included in this group. Group `B includes names of the applicants who have experience in mining. Nine names have been included in this group. The name of the respondent no.3 has been included in this group of applicants who have experience in mining. It seems that the respondent no.3 has been held as having experience in mining, even though it does not have any mining experience, only on the basis that one group company i.e. M/s.Akash Mining Pvt. Ltd. holds a mining lease of granite and iron ore in Orissa. The State Government, in our view, could not have clubbed the experience of a company other than the respondent no.3 as experience of the respondent no.3. It is not permissible to do so.10. In New Horizons Ltd. v. Union of India [(1995) 1 SCC 478] the Supreme Court has observed that the experience of a company which has merged into a re-organized company may be taken into consideration even though the tender has not been submitted in its name and has been submitted in the name of the re-organised company which does not have experience in its name. Then, while considering the converse, the Supreme Court observed as follows:-Conversely there may be a split in a company and persons looking after a particular field of the business of the company form a new company after leaving it. The new company, though having persons with experience in the field, has no experience in its name while the original company having experience in its name lacks persons with experience. The requirement regarding experience does not mean that the offer of the original company must be considered because it has experience in its name though it does not have experienced persons with it and ignore the offer of the new company because it does not have experience in its name though it has persons having experience in the field.Further, the Supreme Court has observed as follows:-The terms and conditions of such a document have to be construed from the standpoint of a prudent businessman. When a businessman enters into a contract whereunder some work is to be performed he seeks to assure himself about the credentials of the person who is to be entrusted with the performance of the work. Such credentials are to be examined from a commercial point of view which means that if the contract is to be entered with a company he will look into the background of the company and the persons who are in control of the same and their capacity to execute the work. He would go not by the name of the company but by the persons behind the company. While keeping in view the past experience he would also take note of the present state of affairs and the equipment and resources at the disposal of the company. The same has to be the approach of the authorities while considering a tender received in response to the advertisement issued on 22-4-1993. This would require that first the terms of the offer must be examined and if they are found satisfactory the next step would be to consider the credentials of the tenderer and his ability to perform the work to be entrusted. For judging the credentials past experience will have to be considered along with the present state of equipment and resources available with the tenderer. Past experience may not be of much help if the machinery and equipment is outdated. Conversely lack of experience may be made good by improved technology and better equipment.We find from the impugned order that nowhere it has been examined how experience of the group company can be treated as the experience of the respondent no.3. Prima facie, it would not be permissible to club the experience of two separate companies together and hold that though any applicant company has no experience itself, it may be condoned as a company which has experience because some other group company has experience. | 1[ds]7. On a plain reading ofsubsections (2) and (3)of section 11 above, it is clear that the State Government is empowered to grant a mining lease only after taking into consideration the matters specified in(3) which includes special knowledge or experience in mining operations, etc. It is thus not open for the State Government to refuse to consider whether the applicant has special knowledge or experience in mining operations. According to the respondent no.3, however, though the State Government cannot refuse to consider if an applicant has special knowledge or any mining experience, it is not necessary for an applicant to actually have any such knowledge or experience if on a consideration of all the other factors or attributes required in the section, the State Government considers the applicant fit to be granted such lease. In other words, according to the respondent no.3,subsections (2) and (3)of section 11 of the Act only requires the State Government to advert to and take into account whether the applicant possesses the attributes referred to in(3), but the State Government can grant a mining lease to an applicant who does not possess such attributes in its sole discretion as it may deem fit. It is not possible to accept this contention thatsubsections (2) and (3)only require the State government to inquire into and take into account whether an applicant possesses the attributes required by those provisions, but that nevertheless the State Government may grant a mining lease even to an applicant who does not possess an attribute if he possesses other attributes referred to in theAccepting this contention would render the provisions meaningless. For example, if the contention were to be accepted, the State Government would be entitled to grant an applicant who possesses no financial resources, vide subsection 3(b), or who has technical staff which is wholly unqualified for the work, vide3(c) and so on. In the circumstances, we are of view that the State Government which is a delegatee of Parliament can grant a mining lease only to an Applicant who has the attributes specified by(3) of section 11.8. In the circumstances, we are of view that the impugned order of the Minister for Mining recommending the grant of a mining lease to the respondent no.3 though the said respondent is not shown to have any special knowledge or experience in mining operations is illegal and violative of section 11 of the Act. The order is also arbitrary in that it rejects the applications of two other applicants, viz., M/s.R.W.SawantCo., Thane, and M/s.Entegra Infrastructures Ltd., Mumbai, on the ground that they are new entrants in the field of mining and do not have any experience. There is no reason why a different yardstick ought to have been applied to the case of the respondent no.3 apparently on the ground that the respondent no.3 is an emerging entrepreneur. It is settled law vide Sandur ManganeseIron Ores Ltd. v. State of Karnataka [(2010) 13 SCC 1] that the State Government cannot justify a grant based on criteria that are de hors the Act and the Mineral Concession Rules,seems that the respondent no.3 has been held as having experience in mining, even though it does not have any mining experience, only on the basis that one group company i.e. M/s.Akash Mining Pvt. Ltd. holds a mining lease of granite and iron ore in Orissa. The State Government, in our view, could not have clubbed the experience of a company other than the respondent no.3 as experience of the respondent no.3. It is not permissible to do so. | 1 | 3,407 | 678 | ### 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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sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself. This principle has been reiterated in CIT v. AnjumM.H. Ghaswala, SCC at p. 644; Captain Sube Singh v. Lt. Governor of Delhi and State of U.P. v. SingharaSingh.The observation in the order that it may be worthwhile to consider the respondent no.3s case because it is an emerging entrepreneur is extraneous to the provisions of the Act, which require the State Government only to take into account the factors or attributes referred to in section 11, sub-sections (2) and (3). It is not possible to accept the justification that because the respondents are said to have taken steps to establish the project, they are entitled to the mining lease. Rule 35 of the Mineral Concession Rules prescribe that the end use of the mineral is a factor that may be taken into account. While doing so, it was not permissible for the State Government to take into account the mere intention of the respondent no.3 to set up an alumina plant in Kolhapur district in which they are said to have supposedly invested Rs.2,000 crores and which will generate employment for 800 to 900 people. The end use contemplated by rule 35 is the end use of mineral by the applicant. That is, the use to which the applicant intends to put the mineral i.e. for example iron ore will be used for steel and so on. This may of course include sale to another. The location of the use such as whether it will be used in a particular district is not a relevant factor.9. Lastly, in paragraph 7 of the order, the Minister for Mining has classified the applicants into groups `A and `B. Group `A comprises the applicants who are financially sound but do not have experience of mining. Seven applicants have been included in this group. Group `B includes names of the applicants who have experience in mining. Nine names have been included in this group. The name of the respondent no.3 has been included in this group of applicants who have experience in mining. It seems that the respondent no.3 has been held as having experience in mining, even though it does not have any mining experience, only on the basis that one group company i.e. M/s.Akash Mining Pvt. Ltd. holds a mining lease of granite and iron ore in Orissa. The State Government, in our view, could not have clubbed the experience of a company other than the respondent no.3 as experience of the respondent no.3. It is not permissible to do so.10. In New Horizons Ltd. v. Union of India [(1995) 1 SCC 478] the Supreme Court has observed that the experience of a company which has merged into a re-organized company may be taken into consideration even though the tender has not been submitted in its name and has been submitted in the name of the re-organised company which does not have experience in its name. Then, while considering the converse, the Supreme Court observed as follows:-Conversely there may be a split in a company and persons looking after a particular field of the business of the company form a new company after leaving it. The new company, though having persons with experience in the field, has no experience in its name while the original company having experience in its name lacks persons with experience. The requirement regarding experience does not mean that the offer of the original company must be considered because it has experience in its name though it does not have experienced persons with it and ignore the offer of the new company because it does not have experience in its name though it has persons having experience in the field.Further, the Supreme Court has observed as follows:-The terms and conditions of such a document have to be construed from the standpoint of a prudent businessman. When a businessman enters into a contract whereunder some work is to be performed he seeks to assure himself about the credentials of the person who is to be entrusted with the performance of the work. Such credentials are to be examined from a commercial point of view which means that if the contract is to be entered with a company he will look into the background of the company and the persons who are in control of the same and their capacity to execute the work. He would go not by the name of the company but by the persons behind the company. While keeping in view the past experience he would also take note of the present state of affairs and the equipment and resources at the disposal of the company. The same has to be the approach of the authorities while considering a tender received in response to the advertisement issued on 22-4-1993. This would require that first the terms of the offer must be examined and if they are found satisfactory the next step would be to consider the credentials of the tenderer and his ability to perform the work to be entrusted. For judging the credentials past experience will have to be considered along with the present state of equipment and resources available with the tenderer. Past experience may not be of much help if the machinery and equipment is outdated. Conversely lack of experience may be made good by improved technology and better equipment.We find from the impugned order that nowhere it has been examined how experience of the group company can be treated as the experience of the respondent no.3. Prima facie, it would not be permissible to club the experience of two separate companies together and hold that though any applicant company has no experience itself, it may be condoned as a company which has experience because some other group company has experience.
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### Explanation:
7. On a plain reading ofsubsections (2) and (3)of section 11 above, it is clear that the State Government is empowered to grant a mining lease only after taking into consideration the matters specified in(3) which includes special knowledge or experience in mining operations, etc. It is thus not open for the State Government to refuse to consider whether the applicant has special knowledge or experience in mining operations. According to the respondent no.3, however, though the State Government cannot refuse to consider if an applicant has special knowledge or any mining experience, it is not necessary for an applicant to actually have any such knowledge or experience if on a consideration of all the other factors or attributes required in the section, the State Government considers the applicant fit to be granted such lease. In other words, according to the respondent no.3,subsections (2) and (3)of section 11 of the Act only requires the State Government to advert to and take into account whether the applicant possesses the attributes referred to in(3), but the State Government can grant a mining lease to an applicant who does not possess such attributes in its sole discretion as it may deem fit. It is not possible to accept this contention thatsubsections (2) and (3)only require the State government to inquire into and take into account whether an applicant possesses the attributes required by those provisions, but that nevertheless the State Government may grant a mining lease even to an applicant who does not possess an attribute if he possesses other attributes referred to in theAccepting this contention would render the provisions meaningless. For example, if the contention were to be accepted, the State Government would be entitled to grant an applicant who possesses no financial resources, vide subsection 3(b), or who has technical staff which is wholly unqualified for the work, vide3(c) and so on. In the circumstances, we are of view that the State Government which is a delegatee of Parliament can grant a mining lease only to an Applicant who has the attributes specified by(3) of section 11.8. In the circumstances, we are of view that the impugned order of the Minister for Mining recommending the grant of a mining lease to the respondent no.3 though the said respondent is not shown to have any special knowledge or experience in mining operations is illegal and violative of section 11 of the Act. The order is also arbitrary in that it rejects the applications of two other applicants, viz., M/s.R.W.SawantCo., Thane, and M/s.Entegra Infrastructures Ltd., Mumbai, on the ground that they are new entrants in the field of mining and do not have any experience. There is no reason why a different yardstick ought to have been applied to the case of the respondent no.3 apparently on the ground that the respondent no.3 is an emerging entrepreneur. It is settled law vide Sandur ManganeseIron Ores Ltd. v. State of Karnataka [(2010) 13 SCC 1] that the State Government cannot justify a grant based on criteria that are de hors the Act and the Mineral Concession Rules,seems that the respondent no.3 has been held as having experience in mining, even though it does not have any mining experience, only on the basis that one group company i.e. M/s.Akash Mining Pvt. Ltd. holds a mining lease of granite and iron ore in Orissa. The State Government, in our view, could not have clubbed the experience of a company other than the respondent no.3 as experience of the respondent no.3. It is not permissible to do so.
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Afsar Sheikh and Another Vs. Soleman Bibi and Others | ploughs his lands. In the face of such evidence, the District Judge was right in holding that Ebad plaintiff, though old, was physically fit to carry on his affairs. There was no evidence to show that the mental capacity of the donor was temporarily or permanently affected or enfeebled by old age or other cause, so that he could not understand the nature of deed or the effect and consequences of its execution. The mere fact that he was illiterate and old, was no proof of such mental incapacity. None of the circumstances mentioned in sub-section (2) of s. 16, had been proved from which an inference could be drawn that the donee was in a position to dominate the will of the donor. The failure of the plaintiff to prove this element of undue influence, which was t o be considered at the first stage, would itself lead to the collapse of the whole ground of "undue influence".22. Assuming for the sake of argument that the "Hiba-bil-Ewaz was induced by influence of Afsar, in whom the former reposed confidence such as a father does, in his son, then also it had not been proved that such influence was undue. As a rule "there is no presumption of undue influence in the case of a gift to a son...... although made during the donors illness and a few days before his death". (Halsburys Laws of England 3rd Ed. Vol. 17, p. 674).23. The District Judge has held (as per his judgment dated 18-6-1965) that the plaintiff executed the Hiba-bil-Ewaz of his own free will after understanding the contents of the deed.24. Indeed, the evidence of the deed writer, DW 6, who knew Ebad for about 5 years previously, was to the effect that he had scribed the deed (Hiba-bil-Ewaz) according to Ebads instructions in the presence of the attesting witnesses. DW 6 then read out the contents of the deed to Ebad, who accepted the same to be correct and then thumb marked it. This account of the witness was not challenged in cross-examination.25. D.W. 7 is an attesting witness of the deed. H e was the Sarparch of Birkiti Gram Panchayat. He had come to the Registration Office at Pakur on that day in connection with his own business. He was known to Ebad. According to the witness, it was Ebad, the donor, - and not the donee-who had re quested the witness to attest the deed. The witness stated that it was Ebad who told him that he was gifting 12-1/2 bighas of land to Afsar in token consideration of a Dhoti given by the latter. The witness corroborated the scribe, that the de ed had been drawn up according to the instructions given by Ebad.The first two courts have concurrently found that these witnesses are respectable, independent and disinterested persons, and their evidence is entirely creditworthy. They also accepted the evidence of DW 3, DW 4 and DW 5 regarding the giving of Dhoti as consideration for the Hiba by the donee to the donor.26. PW 4 was another deed-writer, who had scribed the cancellation deed (Ex. 1), admittedly executed by the plaintiff on 3-2-1959 to revoke the will. The plaintiffs case was that on 3-2-1959, it was Afsar who took him to Pakur and got the cancellation deed executed, and took hold of that deed, and thereafter by a misrepresentation that the de ed had been lost, got on 9-2-1959, the Hiba-bil-Ewaz executed. The core of this story was gouged out by the plaintiffs own witness, PW 4, who had scribed the cancellation deed. PW 4 did not swear to the presence of Afsar defendant on 3-2-59 at Pukar when the cancellation deed Ex. 1 was written and executed. In view of this, the first appellate court, was right in holding, in concurrence with the trial court, that Afsar never accompanied Ebad to Pukar on 3-2-1959, and he not having come into possession of the cancellation deed, no occasion for him arose to induce by misrepresentation or undue influence the execution of the Hiba-bil-Ewaz in question.27. The first appellate Court further came to the conclusion that this gift was acted upon by the parties, the donee entered into possession of the gifted land, that the plaintiffs natural son Moktul who since long before the gift, had been living separately from him, started residing with the plaintiff, and, according to the plaintiffs own admission, Moktul, sometime prior to the suit (which has been filed about one year after the execution of the Hiba) convened a Panchayat in the Mosque, to consider why the land should be given to defendant 1 , and since then the troube arose which led to the institution of the suit.In short, the District Judge who was the final court of fact, after a survey of the entire evidence on record, found that Afsar was not in a position to dominate the will of Ebad Sheikh and that the execution of the Hiba-bil-Ewaz was not induced by undue influence.28. We have discussed the evidence of the important witnesses in some detail to show that on the material on record, the finding of the first appellate court to the effect, that the plaintiff had failed to prove that defendant 1 was in a position to dominate his will, was not wrong or unreasonable. In any case, it did not suffer from any "illegality, omission, error or defect such as is referred to in sub-section (1) of section 100". It was a finding of fact and the High Court in second appeal, had no jurisdiction to interfere with the same, even if it appeared to be erroneous to the High Court, the error not being of a kind indicated in section 100(1).29. Since the plaintiff had failed to substantiate the first element essential to the proof of undue influence, the High Court was wrong in holding that the burden had shifted on the defendant to show that the Hiba-bil-Ewaz was not induced by undue influence.30. | 1[ds]Thus considered, the High Court was in error when by its judgment, dated October 16, 1963, it remanded the case to the first appellate Court with a direction to determine the question of undue influence "on material already on record."Be that as it may, the High Court was not competent, in second appeal, to reverse the finding of fact recorded, after the remand, by the first appellant Court, to the effect, that Afsar was not in a position to dominate the will of the plaintiff, and he did not exercise any undue influence on the plaintiff to obtain the Hiba-bil-Ewaz, which was voluntarily executed by the plaintiff after understanding its contents andscope of the powers of the High Court to interfere in second appeal with judgments and decrees of courts below is indicated in ss. 100, 10 1, and 103 of theCode of Civil Procedure. Broadly, the effect of ss. 100 and 101, read together, is that second appeal is competent only on the ground of an error in law or procedure, and not merely on the ground of an error on a question of f act. The High Court has no jurisdiction to entertain a second appeal on the "ground of a erroneous finding of fact, however gross or inexcusable the error may seem to be" (Mst. Durga Choudhrani v. Jawharthe present case the High Court did not consider the propositions in the order indicated above, and this led to a wrongthe case before us, after a careful examination of the evidence on record, the first appellate Court found the points to be considered at the first two stages, against the plaintiff. It held that although the relationship between the donor and the donee was intimate, like that of father and son characterised by mutual cordiality and affection, the donee was not in a position to dominate the will of the donor. No less a witness than the donor himself, as R.W. 10, emphatically maintained in cross-examination: "Afsar worked sometimes as my labourer on wages and I dont understand what confidence has got to do with it." He intransigently refused to concede even the stark fact-which was otherwise found fully established-that he had brought up Afsar as a son from his very infancy and the latter used to look after the formershave discussed the evidence of the important witnesses in some detail to show that on the material on record, the finding of the first appellate court to the effect, that the plaintiff had failed to prove that defendant 1 was in a position to dominate his will, was not wrong or unreasonable. In any case, it did not suffer from any "illegality, omission, error or defect such as is referred to in sub-section (1) of section 100". It was a finding of fact and the High Court in second appeal, had no jurisdiction to interfere with the same, even if it appeared to be erroneous to the High Court, the error not being of a kind indicated in sectionthe plaintiff had failed to substantiate the first element essential to the proof of undue influence, the High Court was wrong in holding that the burden had shifted on the defendant to show that the Hiba-bil-Ewaz was not induced by unduethe present case the High Court did not consider the propositions in the order indicated above, and this led to a wrongthe case before us, after a careful examination of the evidence on record, the first appellate Court found the points to be considered at the first two stages, against the plaintiff. It held that although the relationship between the donor and the donee was intimate, like that of father and son characterised by mutual cordiality and affection, the donee was not in a position to dominate the will of the donor. No less a witness than the donor himself, as R.W. 10, emphatically maintained in cross-examination: "Afsar worked sometimes as my labourer on wages and I dont understand what confidence has got to do with it." He intransigently refused to concede even the stark fact-which was otherwise found fully established-that he had brought up Afsar as a son from his very infancy and the latter used to look after the formerseven the slander shred in the plaint from which the High Court tried to spell out a whole pattern of fiduciary relationship between the parties and a position of dominant influence for Afsar, was torn and destroyed by the plaintiff himself in theare, with due respect, unable to appreciate this antic construction put on the defendants pleading.All that has been said in the written statement is that the relationship subsisting between the plaintiff and the defendant was marked by love and affection, and was akin to that of father and son.Normally, in such paternal relationship, the father, and not the son, is in a position of dominating influence. The defendants pleading could not be reasonably construed as an admission, direct or inferential, of the fact that he was in a position to dominate the will of the plaintiff. In spelling out a plea of undue influence for the plaintiff by an `inverted construction of the defendants pleading, the High Court overlooked the principle conveyed by the maxim secundum allegataet probata, that the plaintiff could succeed only by what he had alleged and proved. He could not be allowed to travel beyond what was pleaded by him and put in issue. On his failure to prove his case as alleged, the court could not conjure up a new case for him by stretching his pleading and reading into it something which was not there, nor in issue, with the aid of an extraneous document.Thus considered, the High Court was in error when by its judgment, dated October 16, 1963, it remanded the case to the first appellate Court with a direction to determine the question of undue influence "on material already on record."Be that as it may, the High Court was not competent, in second appeal, to reverse the finding of fact recorded, after the remand, by the first appellant Court, to the effect, that Afsar was not in a position to dominate the will of the plaintiff, and he did not exercise any undue influence on the plaintiff to obtain the Hiba-bil-Ewaz, which was voluntarily executed by the plaintiff after understanding its contents and | 1 | 4,907 | 1,174 | ### 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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ploughs his lands. In the face of such evidence, the District Judge was right in holding that Ebad plaintiff, though old, was physically fit to carry on his affairs. There was no evidence to show that the mental capacity of the donor was temporarily or permanently affected or enfeebled by old age or other cause, so that he could not understand the nature of deed or the effect and consequences of its execution. The mere fact that he was illiterate and old, was no proof of such mental incapacity. None of the circumstances mentioned in sub-section (2) of s. 16, had been proved from which an inference could be drawn that the donee was in a position to dominate the will of the donor. The failure of the plaintiff to prove this element of undue influence, which was t o be considered at the first stage, would itself lead to the collapse of the whole ground of "undue influence".22. Assuming for the sake of argument that the "Hiba-bil-Ewaz was induced by influence of Afsar, in whom the former reposed confidence such as a father does, in his son, then also it had not been proved that such influence was undue. As a rule "there is no presumption of undue influence in the case of a gift to a son...... although made during the donors illness and a few days before his death". (Halsburys Laws of England 3rd Ed. Vol. 17, p. 674).23. The District Judge has held (as per his judgment dated 18-6-1965) that the plaintiff executed the Hiba-bil-Ewaz of his own free will after understanding the contents of the deed.24. Indeed, the evidence of the deed writer, DW 6, who knew Ebad for about 5 years previously, was to the effect that he had scribed the deed (Hiba-bil-Ewaz) according to Ebads instructions in the presence of the attesting witnesses. DW 6 then read out the contents of the deed to Ebad, who accepted the same to be correct and then thumb marked it. This account of the witness was not challenged in cross-examination.25. D.W. 7 is an attesting witness of the deed. H e was the Sarparch of Birkiti Gram Panchayat. He had come to the Registration Office at Pakur on that day in connection with his own business. He was known to Ebad. According to the witness, it was Ebad, the donor, - and not the donee-who had re quested the witness to attest the deed. The witness stated that it was Ebad who told him that he was gifting 12-1/2 bighas of land to Afsar in token consideration of a Dhoti given by the latter. The witness corroborated the scribe, that the de ed had been drawn up according to the instructions given by Ebad.The first two courts have concurrently found that these witnesses are respectable, independent and disinterested persons, and their evidence is entirely creditworthy. They also accepted the evidence of DW 3, DW 4 and DW 5 regarding the giving of Dhoti as consideration for the Hiba by the donee to the donor.26. PW 4 was another deed-writer, who had scribed the cancellation deed (Ex. 1), admittedly executed by the plaintiff on 3-2-1959 to revoke the will. The plaintiffs case was that on 3-2-1959, it was Afsar who took him to Pakur and got the cancellation deed executed, and took hold of that deed, and thereafter by a misrepresentation that the de ed had been lost, got on 9-2-1959, the Hiba-bil-Ewaz executed. The core of this story was gouged out by the plaintiffs own witness, PW 4, who had scribed the cancellation deed. PW 4 did not swear to the presence of Afsar defendant on 3-2-59 at Pukar when the cancellation deed Ex. 1 was written and executed. In view of this, the first appellate court, was right in holding, in concurrence with the trial court, that Afsar never accompanied Ebad to Pukar on 3-2-1959, and he not having come into possession of the cancellation deed, no occasion for him arose to induce by misrepresentation or undue influence the execution of the Hiba-bil-Ewaz in question.27. The first appellate Court further came to the conclusion that this gift was acted upon by the parties, the donee entered into possession of the gifted land, that the plaintiffs natural son Moktul who since long before the gift, had been living separately from him, started residing with the plaintiff, and, according to the plaintiffs own admission, Moktul, sometime prior to the suit (which has been filed about one year after the execution of the Hiba) convened a Panchayat in the Mosque, to consider why the land should be given to defendant 1 , and since then the troube arose which led to the institution of the suit.In short, the District Judge who was the final court of fact, after a survey of the entire evidence on record, found that Afsar was not in a position to dominate the will of Ebad Sheikh and that the execution of the Hiba-bil-Ewaz was not induced by undue influence.28. We have discussed the evidence of the important witnesses in some detail to show that on the material on record, the finding of the first appellate court to the effect, that the plaintiff had failed to prove that defendant 1 was in a position to dominate his will, was not wrong or unreasonable. In any case, it did not suffer from any "illegality, omission, error or defect such as is referred to in sub-section (1) of section 100". It was a finding of fact and the High Court in second appeal, had no jurisdiction to interfere with the same, even if it appeared to be erroneous to the High Court, the error not being of a kind indicated in section 100(1).29. Since the plaintiff had failed to substantiate the first element essential to the proof of undue influence, the High Court was wrong in holding that the burden had shifted on the defendant to show that the Hiba-bil-Ewaz was not induced by undue influence.30.
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1
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the finding of fact recorded, after the remand, by the first appellant Court, to the effect, that Afsar was not in a position to dominate the will of the plaintiff, and he did not exercise any undue influence on the plaintiff to obtain the Hiba-bil-Ewaz, which was voluntarily executed by the plaintiff after understanding its contents andscope of the powers of the High Court to interfere in second appeal with judgments and decrees of courts below is indicated in ss. 100, 10 1, and 103 of theCode of Civil Procedure. Broadly, the effect of ss. 100 and 101, read together, is that second appeal is competent only on the ground of an error in law or procedure, and not merely on the ground of an error on a question of f act. The High Court has no jurisdiction to entertain a second appeal on the "ground of a erroneous finding of fact, however gross or inexcusable the error may seem to be" (Mst. Durga Choudhrani v. Jawharthe present case the High Court did not consider the propositions in the order indicated above, and this led to a wrongthe case before us, after a careful examination of the evidence on record, the first appellate Court found the points to be considered at the first two stages, against the plaintiff. It held that although the relationship between the donor and the donee was intimate, like that of father and son characterised by mutual cordiality and affection, the donee was not in a position to dominate the will of the donor. No less a witness than the donor himself, as R.W. 10, emphatically maintained in cross-examination: "Afsar worked sometimes as my labourer on wages and I dont understand what confidence has got to do with it." He intransigently refused to concede even the stark fact-which was otherwise found fully established-that he had brought up Afsar as a son from his very infancy and the latter used to look after the formershave discussed the evidence of the important witnesses in some detail to show that on the material on record, the finding of the first appellate court to the effect, that the plaintiff had failed to prove that defendant 1 was in a position to dominate his will, was not wrong or unreasonable. In any case, it did not suffer from any "illegality, omission, error or defect such as is referred to in sub-section (1) of section 100". It was a finding of fact and the High Court in second appeal, had no jurisdiction to interfere with the same, even if it appeared to be erroneous to the High Court, the error not being of a kind indicated in sectionthe plaintiff had failed to substantiate the first element essential to the proof of undue influence, the High Court was wrong in holding that the burden had shifted on the defendant to show that the Hiba-bil-Ewaz was not induced by unduethe present case the High Court did not consider the propositions in the order indicated above, and this led to a wrongthe case before us, after a careful examination of the evidence on record, the first appellate Court found the points to be considered at the first two stages, against the plaintiff. It held that although the relationship between the donor and the donee was intimate, like that of father and son characterised by mutual cordiality and affection, the donee was not in a position to dominate the will of the donor. No less a witness than the donor himself, as R.W. 10, emphatically maintained in cross-examination: "Afsar worked sometimes as my labourer on wages and I dont understand what confidence has got to do with it." He intransigently refused to concede even the stark fact-which was otherwise found fully established-that he had brought up Afsar as a son from his very infancy and the latter used to look after the formerseven the slander shred in the plaint from which the High Court tried to spell out a whole pattern of fiduciary relationship between the parties and a position of dominant influence for Afsar, was torn and destroyed by the plaintiff himself in theare, with due respect, unable to appreciate this antic construction put on the defendants pleading.All that has been said in the written statement is that the relationship subsisting between the plaintiff and the defendant was marked by love and affection, and was akin to that of father and son.Normally, in such paternal relationship, the father, and not the son, is in a position of dominating influence. The defendants pleading could not be reasonably construed as an admission, direct or inferential, of the fact that he was in a position to dominate the will of the plaintiff. In spelling out a plea of undue influence for the plaintiff by an `inverted construction of the defendants pleading, the High Court overlooked the principle conveyed by the maxim secundum allegataet probata, that the plaintiff could succeed only by what he had alleged and proved. He could not be allowed to travel beyond what was pleaded by him and put in issue. On his failure to prove his case as alleged, the court could not conjure up a new case for him by stretching his pleading and reading into it something which was not there, nor in issue, with the aid of an extraneous document.Thus considered, the High Court was in error when by its judgment, dated October 16, 1963, it remanded the case to the first appellate Court with a direction to determine the question of undue influence "on material already on record."Be that as it may, the High Court was not competent, in second appeal, to reverse the finding of fact recorded, after the remand, by the first appellant Court, to the effect, that Afsar was not in a position to dominate the will of the plaintiff, and he did not exercise any undue influence on the plaintiff to obtain the Hiba-bil-Ewaz, which was voluntarily executed by the plaintiff after understanding its contents and
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Ballarpur Industries Limited Vs. Collector of Customs (Appeals), Customs House, Madras | made of these metals", required classification under the respective material composition heading. It is this assumed situation, which has made it (CEGAT) reproduce the Rules 2(b) and 3(a), (b) and (c) requiring classification of materials or substances, or parts of materials like mineral products, glass, plastics etc. and parts of general use made of base metals and apply the same to the classification of machine part "Granite Press Roll" under consideration, as could be seen from the said discussion itself. Once again, as becomes obvious from its aforesaid discussion at para 5, it is its (CEGATs) assumption that Rule 1 in para 4 relating to materials and substances, given by it is applicable to machine part (part of machinery) in Section XVI, which has made it proceed to hold that "Granite Press Roll" falls in Chapter 68 by reason of Note 1(a) to Chapter 84 9. As rightly pointed out on behalf of the appellant here (respondent before the CEGAT) which was not, rightly, denied on behalf of the respondent here (appellant before the CEGAT) that the rules referred to in the discussion above by the CEGAT at para 4 of its order were rules which were non-existent in Statutory Notes 1 and 2 in Section XVI, Note 1 in Chapter 84 and Note 1 in Chapter 85, although the same were assumed to exist. When the basic rules which formed the foundation for CEGAT to reach the conclusion that "Granite Press Roll" which was admittedly an imported machine part, was that which fell under Heading No. 68.01/16(1) and not under Heading No. 84.31, are found not to exist, the reasoning adopted by it in reaching that conclusion also cannot stand. Consequently, we have to hold that CEGATs conclusion reached in its order under appeal that the imported article "Granite Press Roll" falls under tariff item in Chapter 68 is wholly wrong 10. But, as rightly pointed out by CEGAT itself, the rules which govern the classification of machine part like the "Granite Press Roll" with which we are concerned, ought to be the rules contained in Note 2 of Section XVI under Chapter 84 or Chapter 85, which are already excerpted by us 11. What, then, cannot be ignored is the requirement of the provision in Note 2 to Section XVI, that subject to Note 1 to Section XVI, Note 1 to Chapter 84 and Note 1 to Chapter 85 parts of machine (not being excepted items) are to be classified according to the rules given thereunder as (a), (b) and (c). What Note 2 to Section XVI says, in other words, is that machine parts in Section XVI, which are not covered by articles specified in Note 1 to Section XVI, Note 1 to Chapter 84 and Note 1 to Chapter 85, are to be classified according to rules given under Note 2 to Section XVI itself, that is, Rules (a), (b) and (c) thereof 12. Coming to Rule (a) of Note 2 to Section XVI, which is also excerpted by us, already, goods of a kind described in any of the headings of Chapters 84 and 85 (other than Heading Nos. 84.65 and 85.28) are in all cases to be classified in their respective headings. Then, coming to Rule (b) of Note 2 to Section XVI, which is also excerpted by us, already, other part of goods of a kind described in any of the headings of Chapter 84, if suitable for use solely or principally with a particular kind of machine (described in Chapter 84) is required to be classified with machine of that kind mentioned in Chapter 84. Therefore, what has now to be examined is, when Heading No. 84.31 describes the goods (article) classified thereunder as "machinery for making or finishing cellulosic pulp, paper or paper board" whether the goods or article "Granite Press Roll", which is held by CEGAT itself, to be a part or component of paper-making machinery, does warrant its classification thereunder. In our view, when Note 2 to Section XVI requires classification of parts of machines to be made according to rules given thereunder and when Rule (a) thereunder requires goods (part of machine) of a kind described in any of the headings of Chapters 84 and 85 (other than Nos. 84.65 and 85.28) under respective headings, every machinery for making or finishing cellulosic pulp, paper or paper board, requires to be classified under Heading 84.31. Then, coming to "Granite Press Roll" the imported article under consideration, being a part of machine of goods "Machinery for making or finishing cellulosic pulp, paper or paper board" which is suitable for use solely or principally as machinery for finishing paper, it requires to be classified with the machine described in the Heading 84.31, as required by Rule (b) to Note 2 of Section XVI, inasmuch as, Granite Press Roll is described by CEGAT itself as part of machine of paper-making machinery. Therefore, "Granite Press Roll", the imported article, in our view, warrants its classification under Chapter Heading 84.31, as held by the Collector (Appeals). Thus, when classification of imported article -the Granite Press Roll - ought to have been made under Tariff Item No. 84.31 of Chapter 84, as is held by us, CEGAT has gone wholly wrong in classifying that article under import Tariff Item No. 68.01/16(1) of the First Schedule to the Customs Tariff Act, 1975, particularly when that article could not have been regarded as an article of stone, as such, to become an excepted item under Note 2 to Section XVI read with Note 1(a) to Chapter 84, warranting its classification under heading in Chapter 68 and according to rules governing classification of materials or substances or their parts 13. Since "Granite Press Roll" is an imported article, which is classified by us as Tariff Item No. 84.31 of the First Schedule to the Customs Tariff Act, 1975 as it stood prior to its amendment on 28-2-1986, the import duty payable thereon is only 40% as provided thereunder | 1[ds]10. But, as rightly pointed out by CEGAT itself, the rules which govern the classification of machine part like the "Granite Press Roll" with which we are concerned, ought to be the rules contained in Note 2 of Section XVI under Chapter 84 or Chapter 85, which are already excerpted by us11. What, then, cannot be ignored is the requirement of the provision in Note 2 to Section XVI, that subject to Note 1 to Section XVI, Note 1 to Chapter 84 and Note 1 to Chapter 85 parts of machine (not being excepted items) are to be classified according to the rules given thereunder as (a), (b) and (c). What Note 2 to Section XVI says, in other words, is that machine parts in Section XVI, which are not covered by articles specified in Note 1 to Section XVI, Note 1 to Chapter 84 and Note 1 to Chapter 85, are to be classified according to rules given under Note 2 to Section XVI itself, that is, Rules (a), (b) and (c) thereof12. Coming to Rule (a) of Note 2 to Section XVI, which is also excerpted by us, already, goods of a kind described in any of the headings of Chapters 84 and 85 (other than Heading Nos. 84.65 and 85.28) are in all cases to be classified in their respective headings. Then, coming to Rule (b) of Note 2 to Section XVI, which is also excerpted by us, already, other part of goods of a kind described in any of the headings of Chapter 84, if suitable for use solely or principally with a particular kind of machine (described in Chapter 84) is required to be classified with machine of that kind mentioned in Chapter 84. Therefore, what has now to be examined is, when Heading No. 84.31 describes the goods (article) classified thereunder as "machinery for making or finishing cellulosic pulp, paper or paper board" whether the goods or article "Granite Press Roll", which is held by CEGAT itself, to be a part or component of paper-making machinery, does warrant its classification thereunder. In our view, when Note 2 to Section XVI requires classification of parts of machines to be made according to rules given thereunder and when Rule (a) thereunder requires goods (part of machine) of a kind described in any of the headings of Chapters 84 and 85 (other than Nos. 84.65 and 85.28) under respective headings, every machinery for making or finishing cellulosic pulp, paper or paper board, requires to be classified under Heading 84.31. Then, coming to "Granite Press Roll" the imported article under consideration, being a part of machine of goods "Machinery for making or finishing cellulosic pulp, paper or paper board" which is suitable for use solely or principally as machinery for finishing paper, it requires to be classified with the machine described in the Heading 84.31, as required by Rule (b) to Note 2 of Section XVI, inasmuch as, Granite Press Roll is described by CEGAT itself as part of machine of paper-making machinery. Therefore, "Granite Press Roll", the imported article, in our view, warrants its classification under Chapter Heading 84.31, as held by the Collector (Appeals). Thus, when classification of imported article -the Granite Press Roll - ought to have been made under Tariff Item No. 84.31 of Chapter 84, as is held by us, CEGAT has gone wholly wrong in classifying that article under import Tariff Item No. 68.01/16(1) of the First Schedule to the Customs Tariff Act, 1975, particularly when that article could not have been regarded as an article of stone, as such, to become an excepted item under Note 2 to Section XVI read with Note 1(a) to Chapter 84, warranting its classification under heading in Chapter 68 and according to rules governing classification of materials or substances or their parts13. Since "Granite Press Roll" is an imported article, which is classified by us as Tariff Item No. 84.31 of the First Schedule to the Customs Tariff Act, 1975 as it stood prior to its amendment on 28-2-1986, the import duty payable thereon is only 40% as provided thereunder | 1 | 3,429 | 820 | ### 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:
made of these metals", required classification under the respective material composition heading. It is this assumed situation, which has made it (CEGAT) reproduce the Rules 2(b) and 3(a), (b) and (c) requiring classification of materials or substances, or parts of materials like mineral products, glass, plastics etc. and parts of general use made of base metals and apply the same to the classification of machine part "Granite Press Roll" under consideration, as could be seen from the said discussion itself. Once again, as becomes obvious from its aforesaid discussion at para 5, it is its (CEGATs) assumption that Rule 1 in para 4 relating to materials and substances, given by it is applicable to machine part (part of machinery) in Section XVI, which has made it proceed to hold that "Granite Press Roll" falls in Chapter 68 by reason of Note 1(a) to Chapter 84 9. As rightly pointed out on behalf of the appellant here (respondent before the CEGAT) which was not, rightly, denied on behalf of the respondent here (appellant before the CEGAT) that the rules referred to in the discussion above by the CEGAT at para 4 of its order were rules which were non-existent in Statutory Notes 1 and 2 in Section XVI, Note 1 in Chapter 84 and Note 1 in Chapter 85, although the same were assumed to exist. When the basic rules which formed the foundation for CEGAT to reach the conclusion that "Granite Press Roll" which was admittedly an imported machine part, was that which fell under Heading No. 68.01/16(1) and not under Heading No. 84.31, are found not to exist, the reasoning adopted by it in reaching that conclusion also cannot stand. Consequently, we have to hold that CEGATs conclusion reached in its order under appeal that the imported article "Granite Press Roll" falls under tariff item in Chapter 68 is wholly wrong 10. But, as rightly pointed out by CEGAT itself, the rules which govern the classification of machine part like the "Granite Press Roll" with which we are concerned, ought to be the rules contained in Note 2 of Section XVI under Chapter 84 or Chapter 85, which are already excerpted by us 11. What, then, cannot be ignored is the requirement of the provision in Note 2 to Section XVI, that subject to Note 1 to Section XVI, Note 1 to Chapter 84 and Note 1 to Chapter 85 parts of machine (not being excepted items) are to be classified according to the rules given thereunder as (a), (b) and (c). What Note 2 to Section XVI says, in other words, is that machine parts in Section XVI, which are not covered by articles specified in Note 1 to Section XVI, Note 1 to Chapter 84 and Note 1 to Chapter 85, are to be classified according to rules given under Note 2 to Section XVI itself, that is, Rules (a), (b) and (c) thereof 12. Coming to Rule (a) of Note 2 to Section XVI, which is also excerpted by us, already, goods of a kind described in any of the headings of Chapters 84 and 85 (other than Heading Nos. 84.65 and 85.28) are in all cases to be classified in their respective headings. Then, coming to Rule (b) of Note 2 to Section XVI, which is also excerpted by us, already, other part of goods of a kind described in any of the headings of Chapter 84, if suitable for use solely or principally with a particular kind of machine (described in Chapter 84) is required to be classified with machine of that kind mentioned in Chapter 84. Therefore, what has now to be examined is, when Heading No. 84.31 describes the goods (article) classified thereunder as "machinery for making or finishing cellulosic pulp, paper or paper board" whether the goods or article "Granite Press Roll", which is held by CEGAT itself, to be a part or component of paper-making machinery, does warrant its classification thereunder. In our view, when Note 2 to Section XVI requires classification of parts of machines to be made according to rules given thereunder and when Rule (a) thereunder requires goods (part of machine) of a kind described in any of the headings of Chapters 84 and 85 (other than Nos. 84.65 and 85.28) under respective headings, every machinery for making or finishing cellulosic pulp, paper or paper board, requires to be classified under Heading 84.31. Then, coming to "Granite Press Roll" the imported article under consideration, being a part of machine of goods "Machinery for making or finishing cellulosic pulp, paper or paper board" which is suitable for use solely or principally as machinery for finishing paper, it requires to be classified with the machine described in the Heading 84.31, as required by Rule (b) to Note 2 of Section XVI, inasmuch as, Granite Press Roll is described by CEGAT itself as part of machine of paper-making machinery. Therefore, "Granite Press Roll", the imported article, in our view, warrants its classification under Chapter Heading 84.31, as held by the Collector (Appeals). Thus, when classification of imported article -the Granite Press Roll - ought to have been made under Tariff Item No. 84.31 of Chapter 84, as is held by us, CEGAT has gone wholly wrong in classifying that article under import Tariff Item No. 68.01/16(1) of the First Schedule to the Customs Tariff Act, 1975, particularly when that article could not have been regarded as an article of stone, as such, to become an excepted item under Note 2 to Section XVI read with Note 1(a) to Chapter 84, warranting its classification under heading in Chapter 68 and according to rules governing classification of materials or substances or their parts 13. Since "Granite Press Roll" is an imported article, which is classified by us as Tariff Item No. 84.31 of the First Schedule to the Customs Tariff Act, 1975 as it stood prior to its amendment on 28-2-1986, the import duty payable thereon is only 40% as provided thereunder
### Response:
1
### Explanation:
10. But, as rightly pointed out by CEGAT itself, the rules which govern the classification of machine part like the "Granite Press Roll" with which we are concerned, ought to be the rules contained in Note 2 of Section XVI under Chapter 84 or Chapter 85, which are already excerpted by us11. What, then, cannot be ignored is the requirement of the provision in Note 2 to Section XVI, that subject to Note 1 to Section XVI, Note 1 to Chapter 84 and Note 1 to Chapter 85 parts of machine (not being excepted items) are to be classified according to the rules given thereunder as (a), (b) and (c). What Note 2 to Section XVI says, in other words, is that machine parts in Section XVI, which are not covered by articles specified in Note 1 to Section XVI, Note 1 to Chapter 84 and Note 1 to Chapter 85, are to be classified according to rules given under Note 2 to Section XVI itself, that is, Rules (a), (b) and (c) thereof12. Coming to Rule (a) of Note 2 to Section XVI, which is also excerpted by us, already, goods of a kind described in any of the headings of Chapters 84 and 85 (other than Heading Nos. 84.65 and 85.28) are in all cases to be classified in their respective headings. Then, coming to Rule (b) of Note 2 to Section XVI, which is also excerpted by us, already, other part of goods of a kind described in any of the headings of Chapter 84, if suitable for use solely or principally with a particular kind of machine (described in Chapter 84) is required to be classified with machine of that kind mentioned in Chapter 84. Therefore, what has now to be examined is, when Heading No. 84.31 describes the goods (article) classified thereunder as "machinery for making or finishing cellulosic pulp, paper or paper board" whether the goods or article "Granite Press Roll", which is held by CEGAT itself, to be a part or component of paper-making machinery, does warrant its classification thereunder. In our view, when Note 2 to Section XVI requires classification of parts of machines to be made according to rules given thereunder and when Rule (a) thereunder requires goods (part of machine) of a kind described in any of the headings of Chapters 84 and 85 (other than Nos. 84.65 and 85.28) under respective headings, every machinery for making or finishing cellulosic pulp, paper or paper board, requires to be classified under Heading 84.31. Then, coming to "Granite Press Roll" the imported article under consideration, being a part of machine of goods "Machinery for making or finishing cellulosic pulp, paper or paper board" which is suitable for use solely or principally as machinery for finishing paper, it requires to be classified with the machine described in the Heading 84.31, as required by Rule (b) to Note 2 of Section XVI, inasmuch as, Granite Press Roll is described by CEGAT itself as part of machine of paper-making machinery. Therefore, "Granite Press Roll", the imported article, in our view, warrants its classification under Chapter Heading 84.31, as held by the Collector (Appeals). Thus, when classification of imported article -the Granite Press Roll - ought to have been made under Tariff Item No. 84.31 of Chapter 84, as is held by us, CEGAT has gone wholly wrong in classifying that article under import Tariff Item No. 68.01/16(1) of the First Schedule to the Customs Tariff Act, 1975, particularly when that article could not have been regarded as an article of stone, as such, to become an excepted item under Note 2 to Section XVI read with Note 1(a) to Chapter 84, warranting its classification under heading in Chapter 68 and according to rules governing classification of materials or substances or their parts13. Since "Granite Press Roll" is an imported article, which is classified by us as Tariff Item No. 84.31 of the First Schedule to the Customs Tariff Act, 1975 as it stood prior to its amendment on 28-2-1986, the import duty payable thereon is only 40% as provided thereunder
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Radha Ballabh & Others Vs. State of Uttar Pradesh | are the pieces of the cloth of the Bushirt which was worn by Lalit at the time he was reported missing. Ex. 8 is another envelope containing the address of PW 1 and his father sent by ordinary post bearing the postal seal of Mathura Post Office dated 13-11-1975 and it contained Ex. 9 the letter. The handwriting expert examined the handwriting in the letters Exs. 4, 5 and 9 and gave the opinion that it tallies with the subsequent handwriting of accused Bissu taken before the court. The expert has given detailed reasons for his opinion in this regard. The High Court has noted that from the record it appears that the genuineness of this opinion has not been disputed. The High Court also compared and was satisfied that the handwriting in Exs. 4, 5, and 9 tallies with the admitted handwriting. Therefore it is established that accused Bissu was the author of these letters under the fictitious name of Thakur Hukam Singh Azad. The contents of the letters show that the ransom was demanded. They were sent by post and were received by the addresses in due course. Exs. 2 and 3, the cloth pieces, also lend assurance to the prosecution case that Lalit after being kidnapped was in the custody of the kidnappers. The only defence suggestion is that these exhibits were manipulated and postal seals were put later at the instance of the police by the postal officials, which is baseless. The contents of the letters further establish that Lalit was kidnapped from the lawful guardianship of his parents on 26-9-1975. The next letter Ex. 10 is of great importance. It was sent by ordinary post on an inland cover to informant Shyam Sunder, PW 1 and his father Mohan Lal under the signature of accused Bissu. This letter was bearing the postal seal dated 9-7-1976 namely before the arrest. of accused Bissu. PW 1 also stated that he received the letter on 9-7-1976. The handwriting expert also gave the opinion that the handwriting in Ex. 10 tallies with the subsequent handwriting of accused Bissu. The defence suggestion is that the accused Bissu pleaded that after his arrest he was coerced to write the letter Ex. 10 which on the face of it is false. The letter which is on an inland cover bears the postal seal dated 9-7-1976 and it was also received on the same day by PW 1. According to the Investigating Officer, accused Bissu was arrested in the month of November 1976. Accused Bissu himself stated in his statement under Section 313 CrPC that he was arrested on 29-10-1976. Even assuming this date to be correct, the postal seal on Ex. 10 itself shows that the letter must have been written some months before his arrest. There is a presumption that official acts have been done in due course of business. Consequently the only inference is that these letters were duly affixed with postal seals and were delivered to the addresses by the postal authorities. The respective dates found on these letters have to be accepted to be correct. In Ex. 10 the accused Bissu has given all the details of the kidnapping and also admitted that Raghubir, the other accused, disclosed the place of killing of the child and throwing him into the water with stone placed over him. He, however, added that he has a feeling that the child has not died and ultimately pleaded that PW 1 should forgive him and see that the police does not take any action against him. The High Court has carefully examined the contents of this letter and has rightly come to the conclusion that there is a clear admission of the guilt by the accused Bissu. The High Court, however, added that this document is admissible against all the accused under Section 30 of the Evidence Act. The learned counsel submitted that the High Court has wrongly used the contents of this letter against other accused. For the purpose of this case we need not go into the scope of Section 30 of the Evidence Act. However, the contents of Ex. 10 which is admittedly in the handwriting of accused Bissu establish the role played by accused Bissu and also give clear indication that the child must have been done to death and the same lends necessary assurance to the prosecution story spoken to by other witnesses discussed above. 12. One of the submissions of the learned counsel is that there is no positive proof that the child was killed or the accused caused disappearance of the child. In this context it is contended that no photograph of the boy was shown to the witnesses and therefore the identity of the kidnapped boy also is not established. We see no force in this submission. The above evidence led by the prosecution establish that the boy who was seen by these witnesses at various places was of the same age and complexion as Lalit. The witnesses also deposed that on some occasions the accused persons addressed him as Lalit. The evidence of PW 9, to which we have already referred to, shows that Lalit, son of Shyam Sunder, was the child kidnapped inasmuch as the child himself disclosed his identity to PW 9 on being asked. All these circumstances and the contents of the letters and Exs. 2 and 3, the cloth pieces, establish beyond all reasonable doubt that Lalit was kidnapped and thereafter his whereabouts are not known till today 13. Since these are regular appeals, we have considered all the materials on record in detail and we are satisfied that the High Court has rightly held that the guilt of the convicted accused at least is established beyond all reasonable doubt and they have been rightly convicted for the offence with which they were charged. Learned counsel, however, pointed out that the conviction of accused Bissu under Section 386 IPC is not correct inasmuch as no ransom as such was extorted. | 1[ds]9. Now coming to the actual kidnapping, as already mentioned, the evidence of PWs 2 and 4 to 10 is very important. The general criticism against the evidence of these witnesses in that the identification of the accused must have been shown to the witnesses and at any rate there were long gaps between the arrests and holding the identification parades. We see no force in this submission. The Investigating Officers in their evidence have given various dates ion which the accused were arrested and the dates on which the identification parades were held. For instance, accused Bissu was arrested on6 and the identification parade was held on1976. Accused Radha Ballabh and Raghubir were arrested on5 and the identification parade was held on. Accused Lalta Prasad surrendered in the court on6 and the identification parade was held on. Accused Smt. Basanti was arrested on5 and the identification parade was held on. Accused Devi Ram and Har Charan were arrested on5 concerned knew them even earlier. From the above dates it can be seen that there is not any inordinate delay in holding the identification parades. The evidence of these witnesses looks very natural and truthful. They have identified the accused in the identification parades as well as in the court. The reasoning given by the trial court for discarding these identification parades is that there was ample time and opportunity for showing the accused to the witnesses. It must be remembered that the identification is only a part of the investigation and unless there good reasons to doubt the proceedings, the same cannot be rejected on mere suspicion that the accused might have been shown to the witnesses. We do not find any reason to discard the identification proceedings. Therefore, the fact that these witnesses have identified the accused during the identification parades itself is a strong corroborative circumstance to the identification of the accused made by them in the court10. If the identification of the accused by these witnesses is accepted them their evidence regarding the movements of the accused as spoken to by them should necessarily be accepted. With the background we shall consider the witnesses. Though the first phase of Kidnapping the boy by Smt. Basanti and Radha Ballabh from the house was spoken to by PW 2, however, the courts have not placed any reliance. That does not, however, after the prosecution case in respect of the later movements. The next phase of kidnapping is that Radha Ballabh and Smt. Basanti handed over the boy to accused Lalta Prasad, Raghubir and Bissu to be carried on a. PWs 4 and 10 categorically stated that while they were present in the lane behind the temple, they saw the three accused persons Lalta Prasad, Raghubir and Bissu coming on ae and stopping the vehicle in the lane and shortly afterwards the accused Smt. Basanti and Radha Ballabh came there with the boy with jalebi in a paper cup in the hands of the boy and they gave the boy to the three accused persons Smt Basanti and Radha Ballabh went towards the temple. Bother these witnesses have correctly identified the accused and we have perused the crossexaminations and we do not come across any infirmities which render their shop, deposed that these three accused along with the boy came to his shop and got air filled in the front wheel of the. He also identified the three accused in the identification parade. PW 5 also identified Ex. 2 as a piece of cloth of the identification parade. PW 5 also identified ex. 2 as a piece of cloth of Bushirt which was worn by Lalit. All these three witnesses had ample time to watch the facts of the accused as well as the features of the boy and the dress worn by him. The next phase of the incident is that Lalit was first kept in confinement in Village Karhala in the house belonging to Radha Ballabh, Smt Barfi, Bissu and Ganga Prasad and thereafter in Village Kamai in the house of accused Devi Ram and Har Charan. PWs 6 and 7 had their houses in the vicinity of the house of Radha Ballabh and they testified that they saw a boy about4 1/2 years of a fair complexion. They also stated that they saw the boy on some occasions in the company of Smt. Barfi as well as being taken away by Bissu on a cycle a few days thereafter. They are independent witnesses and nothing has been elicited in their. Their evidence has been attacked on the ground that their version is unnatural inasmuch as they did not inform the authorities. We do not find any force in this submission. Unless they had suspicion that the boy was kidnapped, the question of going to the police would not have arisen and they would not ordinarily incur Court while confirming the acquittal of Smt Barfi and Ganga Prasad also observed that they might not have any suspicion that the boy was kidnapped. If that be so naturally PWs 6 and 7 also could not have entertained any suspicion. We, however, find their evidence to be natural and reliable. Now we come to the next phase of confinement of the boy in the house of accused Devi ram and Har Charan in Village Kamai for about 20 to 25 days. PWs 8 and 9 are the neighbours. They deposed that they have seen the boy in the house of these who accused and that he had stayed there for about 20 to 25 days. Their evident also shows that the boy got used to their company and used to play about and on being asked, the boy also told these witnesses that his name was Lalit and he gave his fathers name as Shyam Sunder. Another important aspect in the evidence of PW 9 is that he saw one day accused Radha Ballabh and Bissu at the house of accused Devi Ram and Har Charan and after that the boy was not seen in the village. WE do not find anything in their evidence to show that they had an axe to grind against these accused. Again the same argument namely that their evidence is unnatural inasmuch as they did not entertain any suspicion to report to the police. As stated above, their evidence for the same reason cannot be discarded. There fore the evidence of these witnesses amply establishes that handed over the boy to accused Lalta Prasad. Raghubir and Bissu and they in turn kept the boy in those two villages and for longer time i.e. nearly 20 to 25 days in the house of accused Devi Ram and Har Charan. Thereafter the boy was again taken away by accused Bissu and whereabouts of the boy were not known after that. It is in this background that the letters received by PW 1 Exs. 4 to 9 assume importance11. According to the prosecution, Ex. 1 to 10 are the communications sent by the kidnappers to the informant Shyam Sunder, PW 1 and his father Mohan Lal. Ex. 1 is the registered envelope containing address of Mohan Lal Sharma bearing postal seal dated. That envelope contained two pieces of cloth marked as Exs. 2 and 3 and two letters Exs. 4 and 5. It has been proved that Exs. 2 and 3 are the pieces of the cloth of the Bushirt which was worn by Lalit at the time he was reported missing. Ex. 8 is another envelope containing the address of PW 1 and his father sent by ordinary post bearing the postal seal of Mathura Post Office dated5 and it contained Ex. 9 the letter. The handwriting expert examined the handwriting in the letters Exs. 4, 5 and 9 and gave the opinion that it tallies with the subsequent handwriting of accused Bissu taken before the court. The expert has given detailed reasons for his opinion in this regard. The High Court has noted that from the record it appears that the genuineness of this opinion has not been disputed. The High Court also compared and was satisfied that the handwriting in Exs. 4, 5, and 9 tallies with the admitted handwriting. Therefore it is established that accused Bissu was the author of these letters under the fictitious name of Thakur Hukam Singh Azad. The contents of the letters show that the ransom was demanded. They were sent by post and were received by the addresses in due course. Exs. 2 and 3, the cloth pieces, also lend assurance to the prosecution case that Lalit after being kidnapped was in the custody of the kidnappers. The only defence suggestion is that these exhibits were manipulated and postal seals were put later at the instance of the police by the postal officials, which is baseless. The contents of the letters further establish that Lalit was kidnapped from the lawful guardianship of his parents on. The next letter Ex. 10 is of great importance. It was sent by ordinary post on an inland cover to informant Shyam Sunder, PW 1 and his father Mohan Lal under the signature of accused Bissu. This letter was bearing the postal seal dated6 namely before the arrest. of accused Bissu. PW 1 also stated that he received the letter on. The handwriting expert also gave the opinion that the handwriting in Ex. 10 tallies with the subsequent handwriting of accused Bissu. The defence suggestion is that the accused Bissu pleaded that after his arrest he was coerced to write the letter Ex. 10 which on the face of it is false. The letter which is on an inland cover bears the postal seal dated6 and it was also received on the same day by PW 1. According to the Investigating Officer, accused Bissu was arrested in the month of November 1976. Accused Bissu himself stated in his statement under Section 313 CrPC that he was arrested on. Even assuming this date to be correct, the postal seal on Ex. 10 itself shows that the letter must have been written some months before his arrest. There is a presumption that official acts have been done in due course of business. Consequently the only inference is that these letters were duly affixed with postal seals and were delivered to the addresses by the postal authorities. The respective dates found on these letters have to be accepted to be correct. In Ex. 10 the accused Bissu has given all the details of the kidnapping and also admitted that Raghubir, the other accused, disclosed the place of killing of the child and throwing him into the water with stone placed over him. He, however, added that he has a feeling that the child has not died and ultimately pleaded that PW 1 should forgive him and see that the police does not take any action against him. The High Court has carefully examined the contents of this letter and has rightly come to the conclusion that there is a clear admission of the guilt by the accused Bissu. The High Court, however, added that this document is admissible against all the accused under Section 30 of the Evidence Act. The learned counsel submitted that the High Court has wrongly used the contents of this letter against other accused. For the purpose of this case we need not go into the scope of Section 30 of the Evidence Act. However, the contents of Ex. 10 which is admittedly in the handwriting of accused Bissu establish the role played by accused Bissu and also give clear indication that the child must have been done to death and the same lends necessary assurance to the prosecution story spoken to by other witnesses discussed above12. One of the submissions of the learned counsel is that there is no positive proof that the child was killed or the accused caused disappearance of the child. In this context it is contended that no photograph of the boy was shown to the witnesses and therefore the identity of the kidnapped boy also is not established. We see no force in this submission. The above evidence led by the prosecution establish that the boy who was seen by these witnesses at various places was of the same age and complexion as Lalit. The witnesses also deposed that on some occasions the accused persons addressed him as Lalit. The evidence of PW 9, to which we have already referred to, shows that Lalit, son of Shyam Sunder, was the child kidnapped inasmuch as the child himself disclosed his identity to PW 9 on being asked. All these circumstances and the contents of the letters and Exs. 2 and 3, the cloth pieces, establish beyond all reasonable doubt that Lalit was kidnapped and thereafter his whereabouts are not known till today13. Since these are regular appeals, we have considered all the materials on record in detail and we are satisfied that the High Court has rightly held that the guilt of the convicted accused at least is established beyond all reasonable doubt and they have been rightly convicted for the offence with which they were charged. Learned counsel, however, pointed out that the conviction of accused Bissu under Section 386 IPC is not correct inasmuch as no ransom as such was extorted. | 1 | 5,392 | 2,389 | ### Instruction:
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are the pieces of the cloth of the Bushirt which was worn by Lalit at the time he was reported missing. Ex. 8 is another envelope containing the address of PW 1 and his father sent by ordinary post bearing the postal seal of Mathura Post Office dated 13-11-1975 and it contained Ex. 9 the letter. The handwriting expert examined the handwriting in the letters Exs. 4, 5 and 9 and gave the opinion that it tallies with the subsequent handwriting of accused Bissu taken before the court. The expert has given detailed reasons for his opinion in this regard. The High Court has noted that from the record it appears that the genuineness of this opinion has not been disputed. The High Court also compared and was satisfied that the handwriting in Exs. 4, 5, and 9 tallies with the admitted handwriting. Therefore it is established that accused Bissu was the author of these letters under the fictitious name of Thakur Hukam Singh Azad. The contents of the letters show that the ransom was demanded. They were sent by post and were received by the addresses in due course. Exs. 2 and 3, the cloth pieces, also lend assurance to the prosecution case that Lalit after being kidnapped was in the custody of the kidnappers. The only defence suggestion is that these exhibits were manipulated and postal seals were put later at the instance of the police by the postal officials, which is baseless. The contents of the letters further establish that Lalit was kidnapped from the lawful guardianship of his parents on 26-9-1975. The next letter Ex. 10 is of great importance. It was sent by ordinary post on an inland cover to informant Shyam Sunder, PW 1 and his father Mohan Lal under the signature of accused Bissu. This letter was bearing the postal seal dated 9-7-1976 namely before the arrest. of accused Bissu. PW 1 also stated that he received the letter on 9-7-1976. The handwriting expert also gave the opinion that the handwriting in Ex. 10 tallies with the subsequent handwriting of accused Bissu. The defence suggestion is that the accused Bissu pleaded that after his arrest he was coerced to write the letter Ex. 10 which on the face of it is false. The letter which is on an inland cover bears the postal seal dated 9-7-1976 and it was also received on the same day by PW 1. According to the Investigating Officer, accused Bissu was arrested in the month of November 1976. Accused Bissu himself stated in his statement under Section 313 CrPC that he was arrested on 29-10-1976. Even assuming this date to be correct, the postal seal on Ex. 10 itself shows that the letter must have been written some months before his arrest. There is a presumption that official acts have been done in due course of business. Consequently the only inference is that these letters were duly affixed with postal seals and were delivered to the addresses by the postal authorities. The respective dates found on these letters have to be accepted to be correct. In Ex. 10 the accused Bissu has given all the details of the kidnapping and also admitted that Raghubir, the other accused, disclosed the place of killing of the child and throwing him into the water with stone placed over him. He, however, added that he has a feeling that the child has not died and ultimately pleaded that PW 1 should forgive him and see that the police does not take any action against him. The High Court has carefully examined the contents of this letter and has rightly come to the conclusion that there is a clear admission of the guilt by the accused Bissu. The High Court, however, added that this document is admissible against all the accused under Section 30 of the Evidence Act. The learned counsel submitted that the High Court has wrongly used the contents of this letter against other accused. For the purpose of this case we need not go into the scope of Section 30 of the Evidence Act. However, the contents of Ex. 10 which is admittedly in the handwriting of accused Bissu establish the role played by accused Bissu and also give clear indication that the child must have been done to death and the same lends necessary assurance to the prosecution story spoken to by other witnesses discussed above. 12. One of the submissions of the learned counsel is that there is no positive proof that the child was killed or the accused caused disappearance of the child. In this context it is contended that no photograph of the boy was shown to the witnesses and therefore the identity of the kidnapped boy also is not established. We see no force in this submission. The above evidence led by the prosecution establish that the boy who was seen by these witnesses at various places was of the same age and complexion as Lalit. The witnesses also deposed that on some occasions the accused persons addressed him as Lalit. The evidence of PW 9, to which we have already referred to, shows that Lalit, son of Shyam Sunder, was the child kidnapped inasmuch as the child himself disclosed his identity to PW 9 on being asked. All these circumstances and the contents of the letters and Exs. 2 and 3, the cloth pieces, establish beyond all reasonable doubt that Lalit was kidnapped and thereafter his whereabouts are not known till today 13. Since these are regular appeals, we have considered all the materials on record in detail and we are satisfied that the High Court has rightly held that the guilt of the convicted accused at least is established beyond all reasonable doubt and they have been rightly convicted for the offence with which they were charged. Learned counsel, however, pointed out that the conviction of accused Bissu under Section 386 IPC is not correct inasmuch as no ransom as such was extorted.
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has been proved that Exs. 2 and 3 are the pieces of the cloth of the Bushirt which was worn by Lalit at the time he was reported missing. Ex. 8 is another envelope containing the address of PW 1 and his father sent by ordinary post bearing the postal seal of Mathura Post Office dated5 and it contained Ex. 9 the letter. The handwriting expert examined the handwriting in the letters Exs. 4, 5 and 9 and gave the opinion that it tallies with the subsequent handwriting of accused Bissu taken before the court. The expert has given detailed reasons for his opinion in this regard. The High Court has noted that from the record it appears that the genuineness of this opinion has not been disputed. The High Court also compared and was satisfied that the handwriting in Exs. 4, 5, and 9 tallies with the admitted handwriting. Therefore it is established that accused Bissu was the author of these letters under the fictitious name of Thakur Hukam Singh Azad. The contents of the letters show that the ransom was demanded. They were sent by post and were received by the addresses in due course. Exs. 2 and 3, the cloth pieces, also lend assurance to the prosecution case that Lalit after being kidnapped was in the custody of the kidnappers. The only defence suggestion is that these exhibits were manipulated and postal seals were put later at the instance of the police by the postal officials, which is baseless. The contents of the letters further establish that Lalit was kidnapped from the lawful guardianship of his parents on. The next letter Ex. 10 is of great importance. It was sent by ordinary post on an inland cover to informant Shyam Sunder, PW 1 and his father Mohan Lal under the signature of accused Bissu. This letter was bearing the postal seal dated6 namely before the arrest. of accused Bissu. PW 1 also stated that he received the letter on. The handwriting expert also gave the opinion that the handwriting in Ex. 10 tallies with the subsequent handwriting of accused Bissu. The defence suggestion is that the accused Bissu pleaded that after his arrest he was coerced to write the letter Ex. 10 which on the face of it is false. The letter which is on an inland cover bears the postal seal dated6 and it was also received on the same day by PW 1. According to the Investigating Officer, accused Bissu was arrested in the month of November 1976. Accused Bissu himself stated in his statement under Section 313 CrPC that he was arrested on. Even assuming this date to be correct, the postal seal on Ex. 10 itself shows that the letter must have been written some months before his arrest. There is a presumption that official acts have been done in due course of business. Consequently the only inference is that these letters were duly affixed with postal seals and were delivered to the addresses by the postal authorities. The respective dates found on these letters have to be accepted to be correct. In Ex. 10 the accused Bissu has given all the details of the kidnapping and also admitted that Raghubir, the other accused, disclosed the place of killing of the child and throwing him into the water with stone placed over him. He, however, added that he has a feeling that the child has not died and ultimately pleaded that PW 1 should forgive him and see that the police does not take any action against him. The High Court has carefully examined the contents of this letter and has rightly come to the conclusion that there is a clear admission of the guilt by the accused Bissu. The High Court, however, added that this document is admissible against all the accused under Section 30 of the Evidence Act. The learned counsel submitted that the High Court has wrongly used the contents of this letter against other accused. For the purpose of this case we need not go into the scope of Section 30 of the Evidence Act. However, the contents of Ex. 10 which is admittedly in the handwriting of accused Bissu establish the role played by accused Bissu and also give clear indication that the child must have been done to death and the same lends necessary assurance to the prosecution story spoken to by other witnesses discussed above12. One of the submissions of the learned counsel is that there is no positive proof that the child was killed or the accused caused disappearance of the child. In this context it is contended that no photograph of the boy was shown to the witnesses and therefore the identity of the kidnapped boy also is not established. We see no force in this submission. The above evidence led by the prosecution establish that the boy who was seen by these witnesses at various places was of the same age and complexion as Lalit. The witnesses also deposed that on some occasions the accused persons addressed him as Lalit. The evidence of PW 9, to which we have already referred to, shows that Lalit, son of Shyam Sunder, was the child kidnapped inasmuch as the child himself disclosed his identity to PW 9 on being asked. All these circumstances and the contents of the letters and Exs. 2 and 3, the cloth pieces, establish beyond all reasonable doubt that Lalit was kidnapped and thereafter his whereabouts are not known till today13. Since these are regular appeals, we have considered all the materials on record in detail and we are satisfied that the High Court has rightly held that the guilt of the convicted accused at least is established beyond all reasonable doubt and they have been rightly convicted for the offence with which they were charged. Learned counsel, however, pointed out that the conviction of accused Bissu under Section 386 IPC is not correct inasmuch as no ransom as such was extorted.
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Podar Mills Limited Vs. State Bank of India | questioned.( 17 ) NOW, it will be seen that the learned Single Judge exercised his discretion and appointed the receiver. As the Privy Council noted in the case of Benoy Krishna, the power of making interlocutory orders is not a suitable subject for review, and such orders should not reviewed in the absence of special circumstances. The authorities of this Court and, indeed, of other High Court show that even in cases of simple mortgage, which, by reason of section 96 of the Transfer of Property Act, are placed on a par with equitable mortgages, a receiver can be appointed if it is just and convenient to do so. A receiver is appointed to protect the mortgaged property pending the disposal of the suit if the circumstances of the case so warrant. ( 18 ) THIS brings us to the present circumstances. The suit is filed by the State Bank of India for recovery from the 1st defendants of loans aggregating to, approximately, Rs. 14 crores, 76 lacs. The loan accounts have, admittedly, been dormant since, 1984, which means that no part of the outstandings, which are public monies, have been recovered by the plaintiffs. We asked Mr. Doctor what the 1st defendants defence to the suit was, and he drew our attention to the 1st defendants affidavit is reply to the Notice of Motion. It is there stated that all papers, books of accounts and other documents relating to the 1st defendant mills have been handed over to the Custodian appointed under the Taking Over of Management Act so that "in absence of the relevant papers being available with the defendant, it is virtually impossible for the defendants No. 1 to deal with the allegations made in the plaint or in the affidavit in support of the Notice of Motion". Such a traversal of the allegations in the plaint and in the affidavit in support of the Notice of Motion would suggest that the plaintiffs have, in the phrase of the Madras High Court, a "very excellent" chance of succeeding in the suit. The management of the 1st defendants textile undertakings at Bombay was taken over under the Taking Over of Management Act in October 1983. Admittedly, the 1st defendants textile undertakings at Jaipur has been closed since August 1985. The plaintiffs alleged in the affidavit in support of the Notice of Motion that the property at Jaipur was unprotected. In reply the 1st defendants stated that the plaintiffs had themselves appointed security staff to protect it. In a further affidavit filed by the plaintiffs it was alleged that the 1st defendants were partitioning the Jaipur property, the security staff was obeying the 1st defendants management and it was apprehended that machinery would be removed by the 1st defendants therefrom. It was also apprehended that the partitioning was being carried out with the intention of creating third party rights therein. This affidavit remains uncontroverted. ( 19 ) MR. Doctor submitted that the plaintiffs had been guilty of such delay as disentitled them to an order for a receiver. He pointed out that the operation of the loan accounts had stopped in 1984. The suit had been filed in December 1986. The application for ad-interim relief had been made in February 1987 and the order for inventory by the Court Receiver made on that application was implemented only in August 1987. We do not think that, even in ordinary circumstances, we would have declined a receiver on this ground alone. Here, additionally, we must bear in mind that the claim is in respect of public monies in so large an amount as, approximately, Rs. 14 crores, 75 lacs. Such security as is now available to the plaintiffs must, therefore, be protected.( 20 ) THERE is, therefore, no reason for us to interfere with the discretion exercised by the learned Judge (except to the extent we now state ). Upon the facts, the order appointing the receiver was certainly called for. ( 21 ) THE learned Judge directed the Court Receiver to appoint the 1st defendants his agents on such terms and conditions as he deemed proper and if the 1st defendants were not willing or were not in a position to accept the terms and conditions of the agency, the Court Receiver was given liberty to sell the hypothecated machinery and moveables and retain the sale proceeds with himself. Mr. Doctor submitted that the 1st defendants should be appointed the Court Receivers agents without any condition as to security or compensation. He said that the only income which the 1st defendants now derived was the sum of Rs. 54/- per month, which was the result of the taking over of the textile undertaking at Bombay under the Taking Over of Management Act. Having regard to this fact and the fact that the textile undertaking at Jaipur has remained closed since August 1985, no purpose will be served by the 1st defendants by taking the agency, but that is for the 1st defendants to decide. We cannot permit them to take the agency without paying any compensation or furnishing any security. If they want the agency, they must enter into an agreement with the Court Receiver to pay such compensation and furnish such security as he deems proper. ( 22 ) IF the 1st defendants are not willing or are not in a position to accept the terms and conditions of the agency, however, we do not think that it would be proper that, pending the disposal of the suit, the machinery and the moveables should be sold. We, therefore, modify the order under appeal to this extent : that if no agency agreement is entered into by the 1st defendants with the Court Receiver within a period of three months from today, the plaintiffs shall have liberty to apply, on a Notice of Motion, that the Court Receiver should be permitted to invite offers from third parties to run the 1st defendants textile undertakings at Jaipur on an agency basis. | 0[ds]We are fortified in the construction that we have placed upon section 8 by the marginal note11 ) ACCORDINGLY, we reject the submission on behalf of the 1st defendants that the plaintiffs Notice of Motion for the appointment of the Court Receiver as receiver of the immoveable property at Jaipur was not maintainable in the absence of the consent of the Centralall these observations there can be noagree, broadly, except with the proposition that an order appointing a receiver will not be made where it has the effect of depriving a defendant of de facto possession. An order appointing a receiver which has also the effect of depriving a defendant of possession may be made if the circumstances of a case so warrant. In fact, a Single Judge of the Madras High Court itself held in (Muniammal v. Guruvayya) A. I. R. 1960 Madras 195, that where proper cause was shown and the relevant circumstances justified, a receiver could be appointed at the instance of the mortgagee even with regard to properties covered by a simpleprima facie, the fact that interest was in arrears was not enough to render the appointment of a receiver just or convenient and the Court had to be satisfied that the effect of the mortgagees conduct was not merely to postpone the final determination of the suit but to imperil the realisation of the amounts secured by theare, of course, many orders of this Court appointing receiver of property which was theof equitable mortgage where the power of the Court to do so was notauthorities of this Court and, indeed, of other High Court show that even in cases of simple mortgage, which, by reason of section 96 of the Transfer of Property Act, are placed on a par with equitable mortgages, a receiver can be appointed if it is just and convenient to do so. A receiver is appointed to protect the mortgaged property pending the disposal of the suit if the circumstances of the case soa further affidavit filed by the plaintiffs it was alleged that the 1st defendants were partitioning the Jaipur property, the security staff was obeying the 1st defendants management and it was apprehended that machinery would be removed by the 1st defendants therefrom. It was also apprehended that the partitioning was being carried out with the intention of creating third party rights therein. This affidavit remainsdo not think that, even in ordinary circumstances, we would have declined a receiver on this ground alone. Here, additionally, we must bear in mind that the claim is in respect of public monies in so large an amount as, approximately, Rs. 14 crores, 75 lacs. Such security as is now available to the plaintiffs must, therefore, be protected.( 20 ) THERE is, therefore, no reason for us to interfere with the discretion exercised by the learned Judge (except to the extent we now state ). Upon the facts, the order appointing the receiver was certainly calledregard to this fact and the fact that the textile undertaking at Jaipur has remained closed since August 1985, no purpose will be served by the 1st defendants by taking the agency, but that is for the 1st defendants to decide. We cannot permit them to take the agency without paying any compensation or furnishing any security. If they want the agency, they must enter into an agreement with the Court Receiver to pay such compensation and furnish such security as he deems22 ) IF the 1st defendants are not willing or are not in a position to accept the terms and conditions of the agency, however, we do not think that it would be proper that, pending the disposal of the suit, the machinery and the moveables should be sold. We, therefore, modify the order under appeal to this extent : that if no agency agreement is entered into by the 1st defendants with the Court Receiver within a period of three months from today, the plaintiffs shall have liberty to apply, on a Notice of Motion, that the Court Receiver should be permitted to invite offers from third parties to run the 1st defendants textile undertakings at Jaipur on an agency basis. | 0 | 4,531 | 759 | ### Instruction:
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questioned.( 17 ) NOW, it will be seen that the learned Single Judge exercised his discretion and appointed the receiver. As the Privy Council noted in the case of Benoy Krishna, the power of making interlocutory orders is not a suitable subject for review, and such orders should not reviewed in the absence of special circumstances. The authorities of this Court and, indeed, of other High Court show that even in cases of simple mortgage, which, by reason of section 96 of the Transfer of Property Act, are placed on a par with equitable mortgages, a receiver can be appointed if it is just and convenient to do so. A receiver is appointed to protect the mortgaged property pending the disposal of the suit if the circumstances of the case so warrant. ( 18 ) THIS brings us to the present circumstances. The suit is filed by the State Bank of India for recovery from the 1st defendants of loans aggregating to, approximately, Rs. 14 crores, 76 lacs. The loan accounts have, admittedly, been dormant since, 1984, which means that no part of the outstandings, which are public monies, have been recovered by the plaintiffs. We asked Mr. Doctor what the 1st defendants defence to the suit was, and he drew our attention to the 1st defendants affidavit is reply to the Notice of Motion. It is there stated that all papers, books of accounts and other documents relating to the 1st defendant mills have been handed over to the Custodian appointed under the Taking Over of Management Act so that "in absence of the relevant papers being available with the defendant, it is virtually impossible for the defendants No. 1 to deal with the allegations made in the plaint or in the affidavit in support of the Notice of Motion". Such a traversal of the allegations in the plaint and in the affidavit in support of the Notice of Motion would suggest that the plaintiffs have, in the phrase of the Madras High Court, a "very excellent" chance of succeeding in the suit. The management of the 1st defendants textile undertakings at Bombay was taken over under the Taking Over of Management Act in October 1983. Admittedly, the 1st defendants textile undertakings at Jaipur has been closed since August 1985. The plaintiffs alleged in the affidavit in support of the Notice of Motion that the property at Jaipur was unprotected. In reply the 1st defendants stated that the plaintiffs had themselves appointed security staff to protect it. In a further affidavit filed by the plaintiffs it was alleged that the 1st defendants were partitioning the Jaipur property, the security staff was obeying the 1st defendants management and it was apprehended that machinery would be removed by the 1st defendants therefrom. It was also apprehended that the partitioning was being carried out with the intention of creating third party rights therein. This affidavit remains uncontroverted. ( 19 ) MR. Doctor submitted that the plaintiffs had been guilty of such delay as disentitled them to an order for a receiver. He pointed out that the operation of the loan accounts had stopped in 1984. The suit had been filed in December 1986. The application for ad-interim relief had been made in February 1987 and the order for inventory by the Court Receiver made on that application was implemented only in August 1987. We do not think that, even in ordinary circumstances, we would have declined a receiver on this ground alone. Here, additionally, we must bear in mind that the claim is in respect of public monies in so large an amount as, approximately, Rs. 14 crores, 75 lacs. Such security as is now available to the plaintiffs must, therefore, be protected.( 20 ) THERE is, therefore, no reason for us to interfere with the discretion exercised by the learned Judge (except to the extent we now state ). Upon the facts, the order appointing the receiver was certainly called for. ( 21 ) THE learned Judge directed the Court Receiver to appoint the 1st defendants his agents on such terms and conditions as he deemed proper and if the 1st defendants were not willing or were not in a position to accept the terms and conditions of the agency, the Court Receiver was given liberty to sell the hypothecated machinery and moveables and retain the sale proceeds with himself. Mr. Doctor submitted that the 1st defendants should be appointed the Court Receivers agents without any condition as to security or compensation. He said that the only income which the 1st defendants now derived was the sum of Rs. 54/- per month, which was the result of the taking over of the textile undertaking at Bombay under the Taking Over of Management Act. Having regard to this fact and the fact that the textile undertaking at Jaipur has remained closed since August 1985, no purpose will be served by the 1st defendants by taking the agency, but that is for the 1st defendants to decide. We cannot permit them to take the agency without paying any compensation or furnishing any security. If they want the agency, they must enter into an agreement with the Court Receiver to pay such compensation and furnish such security as he deems proper. ( 22 ) IF the 1st defendants are not willing or are not in a position to accept the terms and conditions of the agency, however, we do not think that it would be proper that, pending the disposal of the suit, the machinery and the moveables should be sold. We, therefore, modify the order under appeal to this extent : that if no agency agreement is entered into by the 1st defendants with the Court Receiver within a period of three months from today, the plaintiffs shall have liberty to apply, on a Notice of Motion, that the Court Receiver should be permitted to invite offers from third parties to run the 1st defendants textile undertakings at Jaipur on an agency basis.
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We are fortified in the construction that we have placed upon section 8 by the marginal note11 ) ACCORDINGLY, we reject the submission on behalf of the 1st defendants that the plaintiffs Notice of Motion for the appointment of the Court Receiver as receiver of the immoveable property at Jaipur was not maintainable in the absence of the consent of the Centralall these observations there can be noagree, broadly, except with the proposition that an order appointing a receiver will not be made where it has the effect of depriving a defendant of de facto possession. An order appointing a receiver which has also the effect of depriving a defendant of possession may be made if the circumstances of a case so warrant. In fact, a Single Judge of the Madras High Court itself held in (Muniammal v. Guruvayya) A. I. R. 1960 Madras 195, that where proper cause was shown and the relevant circumstances justified, a receiver could be appointed at the instance of the mortgagee even with regard to properties covered by a simpleprima facie, the fact that interest was in arrears was not enough to render the appointment of a receiver just or convenient and the Court had to be satisfied that the effect of the mortgagees conduct was not merely to postpone the final determination of the suit but to imperil the realisation of the amounts secured by theare, of course, many orders of this Court appointing receiver of property which was theof equitable mortgage where the power of the Court to do so was notauthorities of this Court and, indeed, of other High Court show that even in cases of simple mortgage, which, by reason of section 96 of the Transfer of Property Act, are placed on a par with equitable mortgages, a receiver can be appointed if it is just and convenient to do so. A receiver is appointed to protect the mortgaged property pending the disposal of the suit if the circumstances of the case soa further affidavit filed by the plaintiffs it was alleged that the 1st defendants were partitioning the Jaipur property, the security staff was obeying the 1st defendants management and it was apprehended that machinery would be removed by the 1st defendants therefrom. It was also apprehended that the partitioning was being carried out with the intention of creating third party rights therein. This affidavit remainsdo not think that, even in ordinary circumstances, we would have declined a receiver on this ground alone. Here, additionally, we must bear in mind that the claim is in respect of public monies in so large an amount as, approximately, Rs. 14 crores, 75 lacs. Such security as is now available to the plaintiffs must, therefore, be protected.( 20 ) THERE is, therefore, no reason for us to interfere with the discretion exercised by the learned Judge (except to the extent we now state ). Upon the facts, the order appointing the receiver was certainly calledregard to this fact and the fact that the textile undertaking at Jaipur has remained closed since August 1985, no purpose will be served by the 1st defendants by taking the agency, but that is for the 1st defendants to decide. We cannot permit them to take the agency without paying any compensation or furnishing any security. If they want the agency, they must enter into an agreement with the Court Receiver to pay such compensation and furnish such security as he deems22 ) IF the 1st defendants are not willing or are not in a position to accept the terms and conditions of the agency, however, we do not think that it would be proper that, pending the disposal of the suit, the machinery and the moveables should be sold. We, therefore, modify the order under appeal to this extent : that if no agency agreement is entered into by the 1st defendants with the Court Receiver within a period of three months from today, the plaintiffs shall have liberty to apply, on a Notice of Motion, that the Court Receiver should be permitted to invite offers from third parties to run the 1st defendants textile undertakings at Jaipur on an agency basis.
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Chunilal Khusaldas Patel Vs. H.K. Adhyaru & Others | voting rights in respect of the whole block of 1936 shares. The position as it stood on 4-8-1955 was to be considered and it was on an appreciation of the position as it then stood that the District Judge had to and did consider whether the offer of Chunilal or that of Adhyaru should be sanctioned.27. If, therefore the discretion of the District Judge was not, on the facts and circumstances as they then stood, erroneously exercised as stated before and there was also no prejudice to the interests of the contributories, the High Court was not justified in interfering with the discretion exercised by the District Judge and setting aside the order of the District Judge and directing a sale of these 1936 shares by public auction as it did.28. There is also a further consideration why the offer of Chunilal should have been accepted in preference to that of Adhyaru. By his letter dated 29-7-1955 addressed to the Liqudiators, Chunilal had offered to give to the Liquidators the dividend sanctioned at the Annual General Meeting of the Himabhai Company for the year 1954. The directors of the Company had recommended Rs. 20 per share as and by way of dividend and that dividend was to be declared at the Annual General Meeting which was to be held on 6-8-1955. The shares stood in the name of the Liquidators in the register of shareholders of the Himabhai Company and, so far as the Company was concerned, that dividend would be payable to the Liquidators in whose names the shares stood, unless by the time that the dividend came to be declared the shares were transferred in the register of shareholders to the name of Chunilal. The books of the Company were to be closed from 30-7-1955 and unless the transaction had been completed and the shares transferred in the register of shareholders of the Company to the name of Chunilal he would not have been entitled to receive the dividend which would be sanctioned at the Annual General Meeting of the Company on 6-8-1955. This circumstances was considered enough by the High Court to enable it to hold that the offer of Chunilal to the Liquidators to give them the dividend was illusory.It is no doubt true that unless and until the shares were transferred in the name of Chunilal in the register of shareholders of the Company before the date of the Annual General Meeting Chunilal would not have been entitled to the dividends on these 1936 shares. The Company would not recognize anybody except the person whose name was shown as the shareholder in the register of shareholders of the Company and would certainly not be bound to pay the dividends to Chunilal even though the transaction between the Liquidators and Chunilal had been completed. The position, however, between the Liquidators and Chunilal was quite different. Even though Chunilal could not under these circumstances claim the dividend from the Company, as between the Liquidators and Chunilal, Chunilal would be entitled to the dividend and the Liquidators, even though they received the dividend from the Company by virtue of their having been shown as shareholders in the register of shareholders of the Company, would be bound, once the contract of sale had been entered into between them and Chunilal, to hand over the said dividend to Chunilal.The position in law is thus enunciated inPalmers Company Law, 19th edn., page 205 : -"Declared but unpaid dividend passing on transfer.A transfer of shares, after dividend declared, does not, as against the Company, carry the dividend, even where the transferee has expressly bought cum div., but, as between a buyer and seller of shares, the buyer is entitled to all dividends declared after the date of the contract for sale, unless otherwise arranged."There is nothing in the record of the case to show that there was any other arrangement in this behalf and the normal position was that, after the contract for sale was entered into between the Liquidators and Chunilal, Chunilal would become entitled to the dividend on these 1936 shares. Even if the date of the sanction by the District Court, viz., 4-8-1955 be considered as the material date for this purpose, the position would have been no different becauseboth the offers of Chunilal and Adhyaru were before the District Court and the moment the Court sanctioned either of the two offers, the contract of sale would become complete. If the contract of sale thus became complete on 4-8-1955 before the declaration of the dividend at the Annual General Meeting of the Himabhai Company on 6-8-1955, as between the Liquidators and the purchaser the Liquidators would be entitled to recover the dividends from the Company but would be bound to hand over the same to the purchaser. If Adhyarus offer had been sanctioned Adhyaru would have got these dividends from the Liquidators and the Liquidators would not have been entitled to retain the same there being nothing to that effect in the terms of the offer given by Adhyaru to the Liquidators on 27-7-1955. On the other hand, the Liquidators would have been entitled to retain the dividends as against Chunilal because, by his letter dated 29-7-1955 he had agreed to give the dividends the Liquidators. In either view of the situation, the Liquidators stood to gain Rs. 20 more per share if Chunilals offer was sanctioned. They were thus in a position to realise Rs. 520 per share as against Rs. 500 per share offered by Adhyaru. If this circumstance was taken into account there is no doubt that the offer of Chunilal was higher than that of Adhyaru and deserved to be sanctioned by the District Court.29. Having regard, therefore, to all the circumstances of the case, we are of the opinion that the order made by the District Judge was right and the High Court was in error when it set it aside and directed that he said 1936 shares should be sold by public auction. | 1[ds]The whole tender was as composite tender and Chunilal was not satisfied that it was a valid tender of these 1936 shares by the Liquidators to him. The correspondence which took place between the Liquidators and Chunilal between54 makes it abundantly clear that at that stage the Liquidatorws had not got with them the requisite letters of authority from the contributories so as to enabale them to tender even the 1236 shares to Chunilal nor did they at that time make it clear to Chunilal that they were tendering the balance of 700 shares to Chunilal in exercise of their right under cl.(6). It may be that Chunilal expected that he would ulitmately be able to acquire these shares from the individual contributories beyond the said period of five months at the then market rate which according to the then expectation could never be more than Rs. 450 per share, which was much less than Rs. 500 per share which he had agreed to pay under the terms of his agreement.Whatever may have been at the back of his mind, the fact remains that the Liquidatories, on the evening of thedid not make a valid tender of these 1936 shares to Chunilal and Chunilal was well within his rights in refusing to accept the same.He made his position clear in his letter datedwhich he addressed to the Liquidators and it is futile to urge that the attitude which he took up onwas a pureWe are of the opinion that the District Judge was right in his appreciation of the situation as it ontained onand the High Courts conclusion that Chunilal committed a breach of the agreement was claearly erroneous.It is clear from the above that there could be no question of the District Court giving any notice to the contributoriesand the District Judgewas right in the circumstances of the case in considering the only two offers which were submitted before him and exercising his discretion and giving the sanction in favour of Chunilal as he did. If even the contributories who interests were primarily to be saferguarded had not the slightest notion that anything more than Rs. 500 per share could be obtained by a sale of the shares in open market as is evident from the attitude of Madhubhai right up tomuch less could the Liquidators or the District Judge himself have thought of having these shares sold in the open market. If that step had been then taken the result would have been disastrous and not even Rs.per share would have been obtained at such auction sale. The contributories would certainly have suffered and even the offers made by Chunilal and Adhyaru would then have been of no avail. The adventitious circumstance of third parties coming into the field aftercould not have been foreseen by any of the parties concerned and it would be certainly unfair to Chunilal and to Adhyaru to refuse to accept their offers merely on the ground that a sale by public auction was directed by the contributories and might have fetched a higher price than that of Rs. 500 per share actually offered by Chunilal or Adhyaru.It was urged that the appeal was by way ofof the original application and it was open to the High Court to take into consideration the further facts and events in arriving at its conclusion as it did. We are not impressed with that argument. Even though an appeal is in the nature of aand the courts in this country can take into account the facts and events which have come into existence after the decree appealed against, it could be only for moulding the relief to be granted in the appeal :Vide observations of Varadachariar, J., in Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri,1940 FCR 84 at p. 103 : (AIR 1941 FC 5 at p. 13) (A).In the events that had happened as narrated above, there was no justification, therefore, for the High Court taken into consideration the higher offers which were brought into existence by Madhubhai afterbased on a bid for the managing agency of the Himabhai Company on the strength of the acquisition of the voting rights in respect of the whole block of 1936 shares. The position as it stood onwas to be considered and it was on an appreciation of the position as it then stood that the District Judge had to and did consider whether the offer of Chunilal or that of Adhyaru should be sanctioned.27. If, therefore the discretion of the District Judge was not, on the facts and circumstances as they then stood, erroneously exercised as stated before and there was also no prejudice to the interests of the contributories, the High Court was not justified in interfering with the discretion exercised by the District Judge and setting aside the order of the District Judge and directing a sale of these 1936 shares by public auction as itis nothing in the record of the case to show that there was any other arrangement in this behalf and the normal position was that, after the contract for sale was entered into between the Liquidators and Chunilal, Chunilal would become entitled to the dividend on these 1936 shares. Even if the date of the sanction by the District Court, viz.,be considered as the material date for this purpose, the position would have been no different becauseboth the offers of Chunilal and Adhyaru were before the District Court and the moment the Court sanctioned either of the two offers, the contract of sale would become complete. If the contract of sale thus became complete onbefore the declaration of the dividend at the Annual General Meeting of the Himabhai Company onas between the Liquidators and the purchaser the Liquidators would be entitled to recover the dividends from the Company but would be bound to hand over the same to the purchaser. If Adhyarus offer had been sanctioned Adhyaru would have got these dividends from the Liquidators and the Liquidators would not have been entitled to retain the same there being nothing to that effect in the terms of the offer given by Adhyaru to the Liquidators onOn the other hand, the Liquidators would have been entitled to retain the dividends as against Chunilal because, by his letter datedhe had agreed to give the dividends the Liquidators. In either view of the situation, the Liquidators stood to gain Rs. 20 more per share if Chunilals offer was sanctioned. They were thus in a position to realise Rs. 520 per share as against Rs. 500 per share offered by Adhyaru. If this circumstance was taken into account there is no doubt that the offer of Chunilal was higher than that of Adhyaru and deserved to be sanctioned by the District Court.29. Having regard, therefore, to all the circumstances of the case, we are of the opinion that the order made by the District Judge was right and the High Court was in error when it set it aside and directed that he said 1936 shares should be sold by public auction. | 1 | 10,097 | 1,241 | ### Instruction:
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voting rights in respect of the whole block of 1936 shares. The position as it stood on 4-8-1955 was to be considered and it was on an appreciation of the position as it then stood that the District Judge had to and did consider whether the offer of Chunilal or that of Adhyaru should be sanctioned.27. If, therefore the discretion of the District Judge was not, on the facts and circumstances as they then stood, erroneously exercised as stated before and there was also no prejudice to the interests of the contributories, the High Court was not justified in interfering with the discretion exercised by the District Judge and setting aside the order of the District Judge and directing a sale of these 1936 shares by public auction as it did.28. There is also a further consideration why the offer of Chunilal should have been accepted in preference to that of Adhyaru. By his letter dated 29-7-1955 addressed to the Liqudiators, Chunilal had offered to give to the Liquidators the dividend sanctioned at the Annual General Meeting of the Himabhai Company for the year 1954. The directors of the Company had recommended Rs. 20 per share as and by way of dividend and that dividend was to be declared at the Annual General Meeting which was to be held on 6-8-1955. The shares stood in the name of the Liquidators in the register of shareholders of the Himabhai Company and, so far as the Company was concerned, that dividend would be payable to the Liquidators in whose names the shares stood, unless by the time that the dividend came to be declared the shares were transferred in the register of shareholders to the name of Chunilal. The books of the Company were to be closed from 30-7-1955 and unless the transaction had been completed and the shares transferred in the register of shareholders of the Company to the name of Chunilal he would not have been entitled to receive the dividend which would be sanctioned at the Annual General Meeting of the Company on 6-8-1955. This circumstances was considered enough by the High Court to enable it to hold that the offer of Chunilal to the Liquidators to give them the dividend was illusory.It is no doubt true that unless and until the shares were transferred in the name of Chunilal in the register of shareholders of the Company before the date of the Annual General Meeting Chunilal would not have been entitled to the dividends on these 1936 shares. The Company would not recognize anybody except the person whose name was shown as the shareholder in the register of shareholders of the Company and would certainly not be bound to pay the dividends to Chunilal even though the transaction between the Liquidators and Chunilal had been completed. The position, however, between the Liquidators and Chunilal was quite different. Even though Chunilal could not under these circumstances claim the dividend from the Company, as between the Liquidators and Chunilal, Chunilal would be entitled to the dividend and the Liquidators, even though they received the dividend from the Company by virtue of their having been shown as shareholders in the register of shareholders of the Company, would be bound, once the contract of sale had been entered into between them and Chunilal, to hand over the said dividend to Chunilal.The position in law is thus enunciated inPalmers Company Law, 19th edn., page 205 : -"Declared but unpaid dividend passing on transfer.A transfer of shares, after dividend declared, does not, as against the Company, carry the dividend, even where the transferee has expressly bought cum div., but, as between a buyer and seller of shares, the buyer is entitled to all dividends declared after the date of the contract for sale, unless otherwise arranged."There is nothing in the record of the case to show that there was any other arrangement in this behalf and the normal position was that, after the contract for sale was entered into between the Liquidators and Chunilal, Chunilal would become entitled to the dividend on these 1936 shares. Even if the date of the sanction by the District Court, viz., 4-8-1955 be considered as the material date for this purpose, the position would have been no different becauseboth the offers of Chunilal and Adhyaru were before the District Court and the moment the Court sanctioned either of the two offers, the contract of sale would become complete. If the contract of sale thus became complete on 4-8-1955 before the declaration of the dividend at the Annual General Meeting of the Himabhai Company on 6-8-1955, as between the Liquidators and the purchaser the Liquidators would be entitled to recover the dividends from the Company but would be bound to hand over the same to the purchaser. If Adhyarus offer had been sanctioned Adhyaru would have got these dividends from the Liquidators and the Liquidators would not have been entitled to retain the same there being nothing to that effect in the terms of the offer given by Adhyaru to the Liquidators on 27-7-1955. On the other hand, the Liquidators would have been entitled to retain the dividends as against Chunilal because, by his letter dated 29-7-1955 he had agreed to give the dividends the Liquidators. In either view of the situation, the Liquidators stood to gain Rs. 20 more per share if Chunilals offer was sanctioned. They were thus in a position to realise Rs. 520 per share as against Rs. 500 per share offered by Adhyaru. If this circumstance was taken into account there is no doubt that the offer of Chunilal was higher than that of Adhyaru and deserved to be sanctioned by the District Court.29. Having regard, therefore, to all the circumstances of the case, we are of the opinion that the order made by the District Judge was right and the High Court was in error when it set it aside and directed that he said 1936 shares should be sold by public auction.
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mind, the fact remains that the Liquidatories, on the evening of thedid not make a valid tender of these 1936 shares to Chunilal and Chunilal was well within his rights in refusing to accept the same.He made his position clear in his letter datedwhich he addressed to the Liquidators and it is futile to urge that the attitude which he took up onwas a pureWe are of the opinion that the District Judge was right in his appreciation of the situation as it ontained onand the High Courts conclusion that Chunilal committed a breach of the agreement was claearly erroneous.It is clear from the above that there could be no question of the District Court giving any notice to the contributoriesand the District Judgewas right in the circumstances of the case in considering the only two offers which were submitted before him and exercising his discretion and giving the sanction in favour of Chunilal as he did. If even the contributories who interests were primarily to be saferguarded had not the slightest notion that anything more than Rs. 500 per share could be obtained by a sale of the shares in open market as is evident from the attitude of Madhubhai right up tomuch less could the Liquidators or the District Judge himself have thought of having these shares sold in the open market. If that step had been then taken the result would have been disastrous and not even Rs.per share would have been obtained at such auction sale. The contributories would certainly have suffered and even the offers made by Chunilal and Adhyaru would then have been of no avail. The adventitious circumstance of third parties coming into the field aftercould not have been foreseen by any of the parties concerned and it would be certainly unfair to Chunilal and to Adhyaru to refuse to accept their offers merely on the ground that a sale by public auction was directed by the contributories and might have fetched a higher price than that of Rs. 500 per share actually offered by Chunilal or Adhyaru.It was urged that the appeal was by way ofof the original application and it was open to the High Court to take into consideration the further facts and events in arriving at its conclusion as it did. We are not impressed with that argument. Even though an appeal is in the nature of aand the courts in this country can take into account the facts and events which have come into existence after the decree appealed against, it could be only for moulding the relief to be granted in the appeal :Vide observations of Varadachariar, J., in Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri,1940 FCR 84 at p. 103 : (AIR 1941 FC 5 at p. 13) (A).In the events that had happened as narrated above, there was no justification, therefore, for the High Court taken into consideration the higher offers which were brought into existence by Madhubhai afterbased on a bid for the managing agency of the Himabhai Company on the strength of the acquisition of the voting rights in respect of the whole block of 1936 shares. The position as it stood onwas to be considered and it was on an appreciation of the position as it then stood that the District Judge had to and did consider whether the offer of Chunilal or that of Adhyaru should be sanctioned.27. If, therefore the discretion of the District Judge was not, on the facts and circumstances as they then stood, erroneously exercised as stated before and there was also no prejudice to the interests of the contributories, the High Court was not justified in interfering with the discretion exercised by the District Judge and setting aside the order of the District Judge and directing a sale of these 1936 shares by public auction as itis nothing in the record of the case to show that there was any other arrangement in this behalf and the normal position was that, after the contract for sale was entered into between the Liquidators and Chunilal, Chunilal would become entitled to the dividend on these 1936 shares. Even if the date of the sanction by the District Court, viz.,be considered as the material date for this purpose, the position would have been no different becauseboth the offers of Chunilal and Adhyaru were before the District Court and the moment the Court sanctioned either of the two offers, the contract of sale would become complete. If the contract of sale thus became complete onbefore the declaration of the dividend at the Annual General Meeting of the Himabhai Company onas between the Liquidators and the purchaser the Liquidators would be entitled to recover the dividends from the Company but would be bound to hand over the same to the purchaser. If Adhyarus offer had been sanctioned Adhyaru would have got these dividends from the Liquidators and the Liquidators would not have been entitled to retain the same there being nothing to that effect in the terms of the offer given by Adhyaru to the Liquidators onOn the other hand, the Liquidators would have been entitled to retain the dividends as against Chunilal because, by his letter datedhe had agreed to give the dividends the Liquidators. In either view of the situation, the Liquidators stood to gain Rs. 20 more per share if Chunilals offer was sanctioned. They were thus in a position to realise Rs. 520 per share as against Rs. 500 per share offered by Adhyaru. If this circumstance was taken into account there is no doubt that the offer of Chunilal was higher than that of Adhyaru and deserved to be sanctioned by the District Court.29. Having regard, therefore, to all the circumstances of the case, we are of the opinion that the order made by the District Judge was right and the High Court was in error when it set it aside and directed that he said 1936 shares should be sold by public auction.
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DEPUTY COMMISSIONER OF AGRICULTURAL INCOME TAX AND SALES TAX, QUILON Vs. MIDLAND RUBBER AND PRODUCE COMPANY LIMITED | RAMASWAMI, J.1. This appeal is brought by certificate from the judgment of the High Court of Kerala dated July 19, 1965, in Tax Revision Case No. 8 of 1964.2.The respondent, the Midland Rubber and Produce Company Ltd., hereinafter referred to as "the company", is a public limited company engaged in the business of planting and growing rubber trees and converting the latex obtained from the trees into rubber sheets and regularly selling the rubber sheets thus produced by them. The company is a registered dealer under section 7 of the Central Sales Tax Act, 1956 (74 of of 1956), hereinafter referred to as "the Act". For the year 1961-62, the company returned in Form II an aggregate gross turnover of Rs. 11, 43, 140.49 claiming exemption on the entire turnover. The company also filed C Forms covering an aggregate turnover of Rs. 11, 03, 934.10. By his order dated September 29, 1962, the Sales Tax Officer, Special Circle, Alleppey, assessed the company on a net turnover of Rs. 11, 04, 268.96. The company took the matter in appeal before the Appellate Assistant Commissioner of Agricultural Income-tax and Sales Tax, Trivandrum, and contended that though the company had sold rubber and tea produced in their own estate, they were not dealers within the definition of that term in the Act and that no tax could be levied in respect of the sales. The Appellate Assistant Commissioner rejected the appeal by his order dated December 16, 1962. The respondents preferred a second appeal before the Kerala Sales Tax Appellate Tribunal in Appeal No. 72 of 1963. By its order dated January 1, 1964, the Appellate Tribunal allowed the appeal, holding that the company was not a dealer and the inter-State sales of rubber were not taxable under the Act. The appellants thereupon filed Tax Revision Case No. 8 of 1964 before the High Court of Kerala and challenged the correctness of the decision of the Appellate Tribunal. By its order dated July 19, 1965, the High Court dismissed the tax revision case holding that the respondent-company was not a dealer as defined in section 2(b) of the Act and followed its previous decision in Deputy Commissioner of Agricultural Income-tax and Sales Tax, Quilon v. Travancore Rubber and Tea company Ltd. ([1964] 15 S.T.C. 615; 1964 K.L.J. 534).The questions of law arising in this appeal have been the subject-matter of consideration by this court in Deputy Commissioner of Agricultural Income-tax and Sales Tax, Quilon v. Travancore Rubber and Tea Co. ([1967] 20 S.T.C. 520). It was held in that case that though it was conceivable that a producer of crops might also engage in the business of selling or supplying and become a "dealer", the burden of proving that the assessee was carrying on the business of selling or supplying was upon the sales tax authorities and if they made no investigation and have come to the conclusion merely because of the frequency and the volume of the sales, the inference cannot be sustained. The only fact proved in that case was that the assessee converted the latex tapped from its rubber trees into sheets - a process essential for the transport and marketing of the produce concerned - and that the assessee sold those sheets, but no other facts were found and no effort was made by the authorities to find out the intention with which the assessee was formed, the selling organisation it had set up and other relevant facts. It was therefore held by this court that on the facts found, the sales tax department had not discharged the onus and the assessee was not liable to be taxed on the sales in question. The material facts in the present case are almost similar to those in Deputy Commissioner of Agricultural Income-tax and Sales Tax, Quilon v. Travancore Rubber and Tea Co. ([1967] 20 S.T.C. 520). In the present case also the only facts found are that the assessee was a public limited company which was engaged in the business of planting and growing rubber trees and converting the latex obtained from the trees into rubber sheets and regularly selling the rubber sheets thus produced by it. It was argued for the appellant that the company was registered as a "dealer" as defined under section 2(b) of the Act. But this fact in itself is not decisive on the question as to whether the turnover of inter-State sales of rubber is taxable under the Act. Otherwise the material facts in the present case are almost identical with those in Deputy Commissioner of Agricultural Income-tax and Sales Tax, Quilon v. Travancore Rubber and Tea Co. ([1967] 20 S.T.C. 520) and for the reasons expressed in that case we hold that the sales tax department had not discharged the onus of proving that the assessee was carrying on the business and was therefore a dealer within the meaning of section 2(b) of the Act. | 0[ds]In the present case also the only facts found are that the assessee was a public limited company which was engaged in the business of planting and growing rubber trees and converting the latex obtained from the trees into rubber sheets and regularly selling the rubber sheets thus produced by it. It was argued for the appellant that the company was registered as a "dealer" as defined under section 2(b) of the Act. But this fact in itself is not decisive on the question as to whether the turnover ofsales of rubber is taxable under the Act. Otherwise the material facts in the present case are almost identical with those in Deputy Commissioner of Agriculturaland Sales Tax, Quilon v. Travancore Rubber and Tea Co. ([1967] 20 S.T.C. 520) and for the reasons expressed in that case we hold that the sales tax department had not discharged the onus of proving that the assessee was carrying on the business and was therefore a dealer within the meaning of section 2(b) of the Act.The question of law involved in these appeals is identical with the question of law which is theof consideration in Civil Appeal No. 2234 of 1966. The material facts of these two cases are also similar to the material facts found in Civil Appeal No. 2234 of 1966 and for the reasons given in the judgment of that appeal we hold that these two appeals also must fail and they are accordingly dismissed. | 0 | 929 | 269 | ### 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:
RAMASWAMI, J.1. This appeal is brought by certificate from the judgment of the High Court of Kerala dated July 19, 1965, in Tax Revision Case No. 8 of 1964.2.The respondent, the Midland Rubber and Produce Company Ltd., hereinafter referred to as "the company", is a public limited company engaged in the business of planting and growing rubber trees and converting the latex obtained from the trees into rubber sheets and regularly selling the rubber sheets thus produced by them. The company is a registered dealer under section 7 of the Central Sales Tax Act, 1956 (74 of of 1956), hereinafter referred to as "the Act". For the year 1961-62, the company returned in Form II an aggregate gross turnover of Rs. 11, 43, 140.49 claiming exemption on the entire turnover. The company also filed C Forms covering an aggregate turnover of Rs. 11, 03, 934.10. By his order dated September 29, 1962, the Sales Tax Officer, Special Circle, Alleppey, assessed the company on a net turnover of Rs. 11, 04, 268.96. The company took the matter in appeal before the Appellate Assistant Commissioner of Agricultural Income-tax and Sales Tax, Trivandrum, and contended that though the company had sold rubber and tea produced in their own estate, they were not dealers within the definition of that term in the Act and that no tax could be levied in respect of the sales. The Appellate Assistant Commissioner rejected the appeal by his order dated December 16, 1962. The respondents preferred a second appeal before the Kerala Sales Tax Appellate Tribunal in Appeal No. 72 of 1963. By its order dated January 1, 1964, the Appellate Tribunal allowed the appeal, holding that the company was not a dealer and the inter-State sales of rubber were not taxable under the Act. The appellants thereupon filed Tax Revision Case No. 8 of 1964 before the High Court of Kerala and challenged the correctness of the decision of the Appellate Tribunal. By its order dated July 19, 1965, the High Court dismissed the tax revision case holding that the respondent-company was not a dealer as defined in section 2(b) of the Act and followed its previous decision in Deputy Commissioner of Agricultural Income-tax and Sales Tax, Quilon v. Travancore Rubber and Tea company Ltd. ([1964] 15 S.T.C. 615; 1964 K.L.J. 534).The questions of law arising in this appeal have been the subject-matter of consideration by this court in Deputy Commissioner of Agricultural Income-tax and Sales Tax, Quilon v. Travancore Rubber and Tea Co. ([1967] 20 S.T.C. 520). It was held in that case that though it was conceivable that a producer of crops might also engage in the business of selling or supplying and become a "dealer", the burden of proving that the assessee was carrying on the business of selling or supplying was upon the sales tax authorities and if they made no investigation and have come to the conclusion merely because of the frequency and the volume of the sales, the inference cannot be sustained. The only fact proved in that case was that the assessee converted the latex tapped from its rubber trees into sheets - a process essential for the transport and marketing of the produce concerned - and that the assessee sold those sheets, but no other facts were found and no effort was made by the authorities to find out the intention with which the assessee was formed, the selling organisation it had set up and other relevant facts. It was therefore held by this court that on the facts found, the sales tax department had not discharged the onus and the assessee was not liable to be taxed on the sales in question. The material facts in the present case are almost similar to those in Deputy Commissioner of Agricultural Income-tax and Sales Tax, Quilon v. Travancore Rubber and Tea Co. ([1967] 20 S.T.C. 520). In the present case also the only facts found are that the assessee was a public limited company which was engaged in the business of planting and growing rubber trees and converting the latex obtained from the trees into rubber sheets and regularly selling the rubber sheets thus produced by it. It was argued for the appellant that the company was registered as a "dealer" as defined under section 2(b) of the Act. But this fact in itself is not decisive on the question as to whether the turnover of inter-State sales of rubber is taxable under the Act. Otherwise the material facts in the present case are almost identical with those in Deputy Commissioner of Agricultural Income-tax and Sales Tax, Quilon v. Travancore Rubber and Tea Co. ([1967] 20 S.T.C. 520) and for the reasons expressed in that case we hold that the sales tax department had not discharged the onus of proving that the assessee was carrying on the business and was therefore a dealer within the meaning of section 2(b) of the Act.
### Response:
0
### Explanation:
In the present case also the only facts found are that the assessee was a public limited company which was engaged in the business of planting and growing rubber trees and converting the latex obtained from the trees into rubber sheets and regularly selling the rubber sheets thus produced by it. It was argued for the appellant that the company was registered as a "dealer" as defined under section 2(b) of the Act. But this fact in itself is not decisive on the question as to whether the turnover ofsales of rubber is taxable under the Act. Otherwise the material facts in the present case are almost identical with those in Deputy Commissioner of Agriculturaland Sales Tax, Quilon v. Travancore Rubber and Tea Co. ([1967] 20 S.T.C. 520) and for the reasons expressed in that case we hold that the sales tax department had not discharged the onus of proving that the assessee was carrying on the business and was therefore a dealer within the meaning of section 2(b) of the Act.The question of law involved in these appeals is identical with the question of law which is theof consideration in Civil Appeal No. 2234 of 1966. The material facts of these two cases are also similar to the material facts found in Civil Appeal No. 2234 of 1966 and for the reasons given in the judgment of that appeal we hold that these two appeals also must fail and they are accordingly dismissed.
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Moti Ram Vs. Commissioner of Income Tax | British India had not been out of the profits and that therefore the burden which lay on the appellant of rebutting the presumption that remittances were made out of profits had not been discharged. It appears from the judgment of the Tribunal that at the hearing before it after the report of the Income-tax Officer had been received, the appellant for the first time sought to argue that there were no remittances to British India at all. The matter was then put in this way : The remittances had been made on account of price of goods purchased by the appellant in British India. These remittances had been made by telegraphic money-orders despatched from Srinagar Post Offices and by Bank drafts sent by post from Srinagar. The remitter, that is, the appellant, had no control over the moneys covered by the telegraphic money-orders or the bank drafts, once the instructions for the telegraphic money-orders had been given or the bank drafts issued and therefore the moneys covered by them were thereafter not the appellants moneys. The moneys were despatched by telegraphic money-orders and bank drafts sent by post under the instructions of the sellers of the goods and therefore the Post Office was really the agent of these sellers. That being so, when the moneys or drafts were put into the Post Office at Srinagar for transmission to the sellers, they had really become the property of the sellers and the appellant ceased to be the owner of them. Therefore, the moneys that were brought into India under this arrangement and by this method were the moneys of the sellers and not really the appellants moneys and whether they were his profits in Srinagar or not, the appellant was not liable to pay tax on them. The Tribunal felt that this contention of the appellant raised new questions of fact which could not be decided without taking further evidence and it thereupon did not allow the appellant to raise it. As there was no other objection to the Appellate Assistant Commissioners order, the Tribunal dismissed the appeal from it :.7. The appellant then made an application to the Tribunal under S. 66 (1) of the Act for a reference of certain questions to the High Court of Punjab for its decision but this application was dismissed. The appellant did not thereafter make any application to the High Court under S. 66 (2) for an order on the Tribunal to refer the question to the former as the Department had in the meantime attached the appellants properties in British India and was proceeding to realise the amount of the tax levied, and the appellant wanted a stay of the proceedings for the realisition of the tax which he was advised, the High Court could not grant in an application under S. 66. (2). In those circumstances the appellant applied to this Court for special leave to appeal from the judgment of the Tribunal and such leave was granted on 1-2-1954. The present appeal arises from the leave so granted. This Court at the same time ordered a stay of the proceedings for the realisation of the tax from the appellant.8. The learned counsel for the appellant raised before us the question which the Tribunal had not permitted the appellant to raise before it, namely, whether the moneys brought into British India were the appellants moneys or not. We do not think it necessary to go into the merits of this contention and indeed we cannot decide it on the materials on the record.We are clear in our mind that the Tribunal was right in holding that the question raised by the appellant could not be decided without taking further evidence. The Tribunal refused permission to the appellant to lead further evidence and it had full jurisdiction to do so. We see no reason to interfere with the exercise of the Tribunals discretion in the matter. We find nothing to throw any doubt on the Tribunals finding that the present contention was raised by the appellant for the first time when the case came back to the Tribunal on the report of the Income-tax Officer.Indeed it is quite clear to us that if this contention had been raised earlier, the remand to that Officer would have wholly unnecessary and the appellant himself would have pointed this out especially in view of the fact that he was not in a position to show that his profits at Srinagar had not been mixed up with the working funds to enable him to do which alone the case had been remanded.9. It was contended before us that the Tribunal had in fact asked the appellant to produce affidavits to prove what the arrangement with the sellers was regarding the despatch of the moneys and a certificate from the Bank to show that the moneys had been sent by drafts and telegraphic money orders and that once a draft was issued to a beneficiary it could not be recalled by the sender. It was said that the appellant had in fact produced the affidavits and certificate. These are actually included in the printed records. The respondent, the Commissioner of Income-tax, Punjab, contended that the Tribunal had never asked for any affidavits or certificate. We are inclined to think that the respondent is right, for we do not find anywhere any order by the Tribunal calling for the affidavits or the certificate.Further it was open to the Tribunal, even if it had earlier given permission to the appellant to produce the affidavits and the certificate, not to accept them, if it decided not to allow the appellant to raise the new contention, as it in fact did decide. We may also state that we are not in any event satisfied that the affidavits and the certificate support the appellants contention.It is unnecessary to go into this aspect further for we think that the Tribunal was justified in refusing leave to the appellant to raise a new contention. | 0[ds]8. The learned counsel for the appellant raised before us the question which the Tribunal had not permitted the appellant to raise before it, namely, whether the moneys brought into British India were the appellants moneys or not.We do not think it necessary to go into the merits of this contention and indeed we cannot decide it on the materials on the record.We are clear in our mind that the Tribunal was right in holding that the question raised by the appellant could not be decided without taking further evidence. The Tribunal refused permission to the appellant to lead further evidence and it had full jurisdiction to do so. We see no reason to interfere with the exercise of the Tribunals discretion in the matter. We find nothing to throw any doubt on the Tribunals finding that the present contention was raised by the appellant for the first time when the case came back to the Tribunal on the report of theOfficer.Indeed it is quite clear to us that if this contention had been raised earlier, the remand to that Officer would have wholly unnecessary and the appellant himself would have pointed this out especially in view of the fact that he was not in a position to show that his profits at Srinagar had not been mixed up with the working funds to enable him to do which alone the case had been remanded.9.It was contended before us that the Tribunal had in fact asked the appellant to produce affidavits to prove what the arrangement with the sellers was regarding the despatch of the moneys and a certificate from the Bank to show that the moneys had been sent by drafts and telegraphic money orders and that once a draft was issued to a beneficiary it could not be recalled by the sender. It was said that the appellant had in fact produced the affidavits and certificate. These are actually included in the printed records.The respondent, the Commissioner of, contended that the Tribunal had never asked for any affidavits or certificate.We are inclined to think that the respondent is right, for we do not find anywhere any order by the Tribunal calling for the affidavits or the certificate.Further it was open to the Tribunal, even if it had earlier given permission to the appellant to produce the affidavits and the certificate, not to accept them, if it decided not to allow the appellant to raise the new contention, as it in fact did decide. We may also state that we are not in any event satisfied that the affidavits and the certificate support the appellants contention.It is unnecessary to go into this aspect further for we think that the Tribunal was justified in refusing leave to the appellant to raise a new contention. | 0 | 1,693 | 487 | ### 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:
British India had not been out of the profits and that therefore the burden which lay on the appellant of rebutting the presumption that remittances were made out of profits had not been discharged. It appears from the judgment of the Tribunal that at the hearing before it after the report of the Income-tax Officer had been received, the appellant for the first time sought to argue that there were no remittances to British India at all. The matter was then put in this way : The remittances had been made on account of price of goods purchased by the appellant in British India. These remittances had been made by telegraphic money-orders despatched from Srinagar Post Offices and by Bank drafts sent by post from Srinagar. The remitter, that is, the appellant, had no control over the moneys covered by the telegraphic money-orders or the bank drafts, once the instructions for the telegraphic money-orders had been given or the bank drafts issued and therefore the moneys covered by them were thereafter not the appellants moneys. The moneys were despatched by telegraphic money-orders and bank drafts sent by post under the instructions of the sellers of the goods and therefore the Post Office was really the agent of these sellers. That being so, when the moneys or drafts were put into the Post Office at Srinagar for transmission to the sellers, they had really become the property of the sellers and the appellant ceased to be the owner of them. Therefore, the moneys that were brought into India under this arrangement and by this method were the moneys of the sellers and not really the appellants moneys and whether they were his profits in Srinagar or not, the appellant was not liable to pay tax on them. The Tribunal felt that this contention of the appellant raised new questions of fact which could not be decided without taking further evidence and it thereupon did not allow the appellant to raise it. As there was no other objection to the Appellate Assistant Commissioners order, the Tribunal dismissed the appeal from it :.7. The appellant then made an application to the Tribunal under S. 66 (1) of the Act for a reference of certain questions to the High Court of Punjab for its decision but this application was dismissed. The appellant did not thereafter make any application to the High Court under S. 66 (2) for an order on the Tribunal to refer the question to the former as the Department had in the meantime attached the appellants properties in British India and was proceeding to realise the amount of the tax levied, and the appellant wanted a stay of the proceedings for the realisition of the tax which he was advised, the High Court could not grant in an application under S. 66. (2). In those circumstances the appellant applied to this Court for special leave to appeal from the judgment of the Tribunal and such leave was granted on 1-2-1954. The present appeal arises from the leave so granted. This Court at the same time ordered a stay of the proceedings for the realisation of the tax from the appellant.8. The learned counsel for the appellant raised before us the question which the Tribunal had not permitted the appellant to raise before it, namely, whether the moneys brought into British India were the appellants moneys or not. We do not think it necessary to go into the merits of this contention and indeed we cannot decide it on the materials on the record.We are clear in our mind that the Tribunal was right in holding that the question raised by the appellant could not be decided without taking further evidence. The Tribunal refused permission to the appellant to lead further evidence and it had full jurisdiction to do so. We see no reason to interfere with the exercise of the Tribunals discretion in the matter. We find nothing to throw any doubt on the Tribunals finding that the present contention was raised by the appellant for the first time when the case came back to the Tribunal on the report of the Income-tax Officer.Indeed it is quite clear to us that if this contention had been raised earlier, the remand to that Officer would have wholly unnecessary and the appellant himself would have pointed this out especially in view of the fact that he was not in a position to show that his profits at Srinagar had not been mixed up with the working funds to enable him to do which alone the case had been remanded.9. It was contended before us that the Tribunal had in fact asked the appellant to produce affidavits to prove what the arrangement with the sellers was regarding the despatch of the moneys and a certificate from the Bank to show that the moneys had been sent by drafts and telegraphic money orders and that once a draft was issued to a beneficiary it could not be recalled by the sender. It was said that the appellant had in fact produced the affidavits and certificate. These are actually included in the printed records. The respondent, the Commissioner of Income-tax, Punjab, contended that the Tribunal had never asked for any affidavits or certificate. We are inclined to think that the respondent is right, for we do not find anywhere any order by the Tribunal calling for the affidavits or the certificate.Further it was open to the Tribunal, even if it had earlier given permission to the appellant to produce the affidavits and the certificate, not to accept them, if it decided not to allow the appellant to raise the new contention, as it in fact did decide. We may also state that we are not in any event satisfied that the affidavits and the certificate support the appellants contention.It is unnecessary to go into this aspect further for we think that the Tribunal was justified in refusing leave to the appellant to raise a new contention.
### Response:
0
### Explanation:
8. The learned counsel for the appellant raised before us the question which the Tribunal had not permitted the appellant to raise before it, namely, whether the moneys brought into British India were the appellants moneys or not.We do not think it necessary to go into the merits of this contention and indeed we cannot decide it on the materials on the record.We are clear in our mind that the Tribunal was right in holding that the question raised by the appellant could not be decided without taking further evidence. The Tribunal refused permission to the appellant to lead further evidence and it had full jurisdiction to do so. We see no reason to interfere with the exercise of the Tribunals discretion in the matter. We find nothing to throw any doubt on the Tribunals finding that the present contention was raised by the appellant for the first time when the case came back to the Tribunal on the report of theOfficer.Indeed it is quite clear to us that if this contention had been raised earlier, the remand to that Officer would have wholly unnecessary and the appellant himself would have pointed this out especially in view of the fact that he was not in a position to show that his profits at Srinagar had not been mixed up with the working funds to enable him to do which alone the case had been remanded.9.It was contended before us that the Tribunal had in fact asked the appellant to produce affidavits to prove what the arrangement with the sellers was regarding the despatch of the moneys and a certificate from the Bank to show that the moneys had been sent by drafts and telegraphic money orders and that once a draft was issued to a beneficiary it could not be recalled by the sender. It was said that the appellant had in fact produced the affidavits and certificate. These are actually included in the printed records.The respondent, the Commissioner of, contended that the Tribunal had never asked for any affidavits or certificate.We are inclined to think that the respondent is right, for we do not find anywhere any order by the Tribunal calling for the affidavits or the certificate.Further it was open to the Tribunal, even if it had earlier given permission to the appellant to produce the affidavits and the certificate, not to accept them, if it decided not to allow the appellant to raise the new contention, as it in fact did decide. We may also state that we are not in any event satisfied that the affidavits and the certificate support the appellants contention.It is unnecessary to go into this aspect further for we think that the Tribunal was justified in refusing leave to the appellant to raise a new contention.
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B.S. Mahabala Vs. Gopala Krishna & Another | ; Hasham Abbas Sayyad v. Usman Abbas Sayyad and Ors., (2007) 2 SCC 355 and Zuari Cement Limited v. Regional Director, Employees State Insurance Corporation, 2016(1) S.C.T. 157 : (2015) 7 SCC 690. On the basis of the above submissions, it is prayed that the appeal be dismissed.8. Having considered the rival submissions and after perusing the judgment of the learned Single Judge and of the Division Bench, we are not inclined to interfere in this appeal. For, the learned Single Judge has only remanded the matter to the Land Tribunal for fresh consideration of all aspects after giving opportunity to the legal representatives of the deceased tenant Channappa Poojary. The Appellant will get an opportunity to raise all contentions that may be available to him in law for grant of occupancy rights in respect of the said lands in his favour on the basis of the Will executed by deceased Channappa Poojary. Whether that Will is admissible in evidence or is a genuine Will is a matter which must receive attention of the Land Tribunal. Besides, the Land Tribunal must also address itself as to whether any transfer by way of a Will in favour of person(s) other than spouse, minor sons, unmarried daughters, is permissible in law keeping in mind the rigours of Section 21 read with 2(12) and other applicable provisions of the said Act. The legal position in that behalf has already been expounded by this Court in the case of Sangappa Kalyanappa Bangi (Supra) and Jayamma (Supra). There is no reason to entertain any apprehension, by any party, that the matters in issue will not be adjudicated by the Land Tribunal, keeping in view the provisions of the said Act and the settled legal position expounded in the aforesaid reported decisions.9. The argument of the Appellant that the order passed by the Land Tribunal on 04.10.1980 cannot be allowed to be challenged at this distance of time, in our opinion, is misplaced. We agree with the view expressed by the Division Bench of the High Court that the Land Tribunal committed manifest jurisdictional error by passing an order in favour of the Appellant behind the back of the legal representatives of the deceased tenant/applicant. For, it could not have proceeded with the inquiry behind the back of the legal representatives of the deceased tenant without bringing them on record in the proceedings pending before it. Such exercise of jurisdiction is bordering on passing an order which is nullity in the eyes of law. It would have been a different matter if the Land Tribunal had consciously proceeded on being satisfied that the deceased tenant Applicant has not left behind any legal representative who could espouse his or their cause further. No attempt was made by the Land Tribunal to ascertain about the possibility of any objection from any legal representative of the deceased tenant/Applicant before bestowing occupancy rights in favour of the Appellant on the basis of the alleged Will executed by Channappa Poojary.10. As the order passed by the Land Tribunal is vitiated due to failure to bring on record the legal representatives of deceased Applicant Channappa Poojary and also without considering the mandate of Section 21 of the Act, the objection regarding the manner of interference by the Learned Single Judge of the High Court does not commend to us. The Respondent No. 1 in his writ petition had offered explanation about the circumstances in which he could file the writ petition only after getting knowledge of the order in the 1st week of April, 2004. Further, the plea of laches cannot be countenanced in light of the assertion of the Respondent No. 1 that, taking advantage of his minority, the Appellant succeeded in misleading the Land Tribunal to pass an order in his favour on the basis of an alleged Will executed by Channappa Poojary. This technical plea has been rightly negatived by the High Court in the fact situation of the present case involving the permissibility of transfer of tenancy by a Will to third person who is not covered by the excepted category of persons. Thus, the legal principle expounded in the case of State of Rajasthan v. D.R. Laxmi and Ors., (1996) 6 SCC 445 and Tayabbhai M. Bagasarwalla v. Hind Rubber Industries Pvt. Ltd., 1997(2) R.C.R.(Civil) 473 : 1997(2) R.C.R.(Rent) 682 : (1997) 3 SCC 443 , will be of no avail to the Appellant. The Respondent No. 1 has justly relied on the decisions in the case of Hasham Abbas Sayyad (supra) to buttress his plea that the objection regarding procedural matters cannot come in the way in a case where an order passed by the Tribunal is without jurisdiction as in this case and that issue can be raised at any stage [see Zuari Cement Limited (supra)].11. As aforesaid, the Tribunal must and will have to first consider the legal position as to whether the Appellant can legitimately claim to be a legal heir of the deceased tenant within the meaning of Section 21 read with 2(12) and other applicable provisions of the said Act; and only on recording finding on that issue in favour of the Appellant, further inquiry into the matter regarding the admissibility and genuineness of the alleged Will may become necessary. Since the parties have been relegated before the Land Tribunal, all questions about the genuineness and the legitimacy of their claim can be and will have to be considered by the said Authority in the first place on its own merit and in accordance with law without being influenced by any observation made by the learned Single Judge or the Division Bench of the High Court or for that matter, in the present judgment.12. At the cost of repetition we clarify that the Land Tribunal must examine all the relevant facts necessary for full, complete and effectual adjudication of the claim between the parties keeping in mind the settled legal position in respect of the relevant provisions of the said Act. | 0[ds]8. Having considered the rival submissions and after perusing the judgment of the learned Single Judge and of the Division Bench, we are not inclined to interfere in this appeal. For, the learned Single Judge has only remanded the matter to the Land Tribunal for fresh consideration of all aspects after giving opportunity to the legal representatives of the deceased tenant Channappa Poojary. The Appellant will get an opportunity to raise all contentions that may be available to him in law for grant of occupancy rights in respect of the said lands in his favour on the basis of the Will executed by deceased Channappa Poojary. Whether that Will is admissible in evidence or is a genuine Will is a matter which must receive attention of the Land Tribunal. Besides, the Land Tribunal must also address itself as to whether any transfer by way of a Will in favour of person(s) other than spouse, minor sons, unmarried daughters, is permissible in law keeping in mind the rigours of Section 21 read with 2(12) and other applicable provisions of the said Act. The legal position in that behalf has already been expounded by this Court in the case of Sangappa Kalyanappa Bangi (Supra) and Jayamma (Supra). There is no reason to entertain any apprehension, by any party, that the matters in issue will not be adjudicated by the Land Tribunal, keeping in view the provisions of the said Act and the settled legal position expounded in the aforesaid reported decisions.9. The argument of the Appellant that the order passed by the Land Tribunal on 04.10.1980 cannot be allowed to be challenged at this distance of time, in our opinion, is misplaced. We agree with the view expressed by the Division Bench of the High Court that the Land Tribunal committed manifest jurisdictional error by passing an order in favour of the Appellant behind the back of the legal representatives of the deceased tenant/applicant. For, it could not have proceeded with the inquiry behind the back of the legal representatives of the deceased tenant without bringing them on record in the proceedings pending before it. Such exercise of jurisdiction is bordering on passing an order which is nullity in the eyes of law. It would have been a different matter if the Land Tribunal had consciously proceeded on being satisfied that the deceased tenant Applicant has not left behind any legal representative who could espouse his or their cause further. No attempt was made by the Land Tribunal to ascertain about the possibility of any objection from any legal representative of the deceased tenant/Applicant before bestowing occupancy rights in favour of the Appellant on the basis of the alleged Will executed by Channappa Poojary.10. As the order passed by the Land Tribunal is vitiated due to failure to bring on record the legal representatives of deceased Applicant Channappa Poojary and also without considering the mandate of Section 21 of the Act, the objection regarding the manner of interference by the Learned Single Judge of the High Court does not commend to us. The Respondent No. 1 in his writ petition had offered explanation about the circumstances in which he could file the writ petition only after getting knowledge of the order in the 1st week of April, 2004. Further, the plea of laches cannot be countenanced in light of the assertion of the Respondent No. 1 that, taking advantage of his minority, the Appellant succeeded in misleading the Land Tribunal to pass an order in his favour on the basis of an alleged Will executed by Channappa Poojary. This technical plea has been rightly negatived by the High Court in the fact situation of the present case involving the permissibility of transfer of tenancy by a Will to third person who is not covered by the excepted category of persons. Thus, the legal principle expounded in the case of State of Rajasthan v. D.R. Laxmi and Ors., (1996) 6 SCC 445 and Tayabbhai M. Bagasarwalla v. Hind Rubber Industries Pvt. Ltd., 1997(2) R.C.R.(Civil) 473 : 1997(2) R.C.R.(Rent) 682 : (1997) 3 SCC 443 , will be of no avail to the Appellant. The Respondent No. 1 has justly relied on the decisions in the case of Hasham Abbas Sayyad (supra) to buttress his plea that the objection regarding procedural matters cannot come in the way in a case where an order passed by the Tribunal is without jurisdiction as in this case and that issue can be raised at any stage [see Zuari Cement Limited (supra)].11. As aforesaid, the Tribunal must and will have to first consider the legal position as to whether the Appellant can legitimately claim to be a legal heir of the deceased tenant within the meaning of Section 21 read with 2(12) and other applicable provisions of the said Act; and only on recording finding on that issue in favour of the Appellant, further inquiry into the matter regarding the admissibility and genuineness of the alleged Will may become necessary. Since the parties have been relegated before the Land Tribunal, all questions about the genuineness and the legitimacy of their claim can be and will have to be considered by the said Authority in the first place on its own merit and in accordance with law without being influenced by any observation made by the learned Single Judge or the Division Bench of the High Court or for that matter, in the present judgment.12. At the cost of repetition we clarify that the Land Tribunal must examine all the relevant facts necessary for full, complete and effectual adjudication of the claim between the parties keeping in mind the settled legal position in respect of the relevant provisions of the said Act. | 0 | 2,831 | 1,052 | ### 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:
; Hasham Abbas Sayyad v. Usman Abbas Sayyad and Ors., (2007) 2 SCC 355 and Zuari Cement Limited v. Regional Director, Employees State Insurance Corporation, 2016(1) S.C.T. 157 : (2015) 7 SCC 690. On the basis of the above submissions, it is prayed that the appeal be dismissed.8. Having considered the rival submissions and after perusing the judgment of the learned Single Judge and of the Division Bench, we are not inclined to interfere in this appeal. For, the learned Single Judge has only remanded the matter to the Land Tribunal for fresh consideration of all aspects after giving opportunity to the legal representatives of the deceased tenant Channappa Poojary. The Appellant will get an opportunity to raise all contentions that may be available to him in law for grant of occupancy rights in respect of the said lands in his favour on the basis of the Will executed by deceased Channappa Poojary. Whether that Will is admissible in evidence or is a genuine Will is a matter which must receive attention of the Land Tribunal. Besides, the Land Tribunal must also address itself as to whether any transfer by way of a Will in favour of person(s) other than spouse, minor sons, unmarried daughters, is permissible in law keeping in mind the rigours of Section 21 read with 2(12) and other applicable provisions of the said Act. The legal position in that behalf has already been expounded by this Court in the case of Sangappa Kalyanappa Bangi (Supra) and Jayamma (Supra). There is no reason to entertain any apprehension, by any party, that the matters in issue will not be adjudicated by the Land Tribunal, keeping in view the provisions of the said Act and the settled legal position expounded in the aforesaid reported decisions.9. The argument of the Appellant that the order passed by the Land Tribunal on 04.10.1980 cannot be allowed to be challenged at this distance of time, in our opinion, is misplaced. We agree with the view expressed by the Division Bench of the High Court that the Land Tribunal committed manifest jurisdictional error by passing an order in favour of the Appellant behind the back of the legal representatives of the deceased tenant/applicant. For, it could not have proceeded with the inquiry behind the back of the legal representatives of the deceased tenant without bringing them on record in the proceedings pending before it. Such exercise of jurisdiction is bordering on passing an order which is nullity in the eyes of law. It would have been a different matter if the Land Tribunal had consciously proceeded on being satisfied that the deceased tenant Applicant has not left behind any legal representative who could espouse his or their cause further. No attempt was made by the Land Tribunal to ascertain about the possibility of any objection from any legal representative of the deceased tenant/Applicant before bestowing occupancy rights in favour of the Appellant on the basis of the alleged Will executed by Channappa Poojary.10. As the order passed by the Land Tribunal is vitiated due to failure to bring on record the legal representatives of deceased Applicant Channappa Poojary and also without considering the mandate of Section 21 of the Act, the objection regarding the manner of interference by the Learned Single Judge of the High Court does not commend to us. The Respondent No. 1 in his writ petition had offered explanation about the circumstances in which he could file the writ petition only after getting knowledge of the order in the 1st week of April, 2004. Further, the plea of laches cannot be countenanced in light of the assertion of the Respondent No. 1 that, taking advantage of his minority, the Appellant succeeded in misleading the Land Tribunal to pass an order in his favour on the basis of an alleged Will executed by Channappa Poojary. This technical plea has been rightly negatived by the High Court in the fact situation of the present case involving the permissibility of transfer of tenancy by a Will to third person who is not covered by the excepted category of persons. Thus, the legal principle expounded in the case of State of Rajasthan v. D.R. Laxmi and Ors., (1996) 6 SCC 445 and Tayabbhai M. Bagasarwalla v. Hind Rubber Industries Pvt. Ltd., 1997(2) R.C.R.(Civil) 473 : 1997(2) R.C.R.(Rent) 682 : (1997) 3 SCC 443 , will be of no avail to the Appellant. The Respondent No. 1 has justly relied on the decisions in the case of Hasham Abbas Sayyad (supra) to buttress his plea that the objection regarding procedural matters cannot come in the way in a case where an order passed by the Tribunal is without jurisdiction as in this case and that issue can be raised at any stage [see Zuari Cement Limited (supra)].11. As aforesaid, the Tribunal must and will have to first consider the legal position as to whether the Appellant can legitimately claim to be a legal heir of the deceased tenant within the meaning of Section 21 read with 2(12) and other applicable provisions of the said Act; and only on recording finding on that issue in favour of the Appellant, further inquiry into the matter regarding the admissibility and genuineness of the alleged Will may become necessary. Since the parties have been relegated before the Land Tribunal, all questions about the genuineness and the legitimacy of their claim can be and will have to be considered by the said Authority in the first place on its own merit and in accordance with law without being influenced by any observation made by the learned Single Judge or the Division Bench of the High Court or for that matter, in the present judgment.12. At the cost of repetition we clarify that the Land Tribunal must examine all the relevant facts necessary for full, complete and effectual adjudication of the claim between the parties keeping in mind the settled legal position in respect of the relevant provisions of the said Act.
### Response:
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### Explanation:
8. Having considered the rival submissions and after perusing the judgment of the learned Single Judge and of the Division Bench, we are not inclined to interfere in this appeal. For, the learned Single Judge has only remanded the matter to the Land Tribunal for fresh consideration of all aspects after giving opportunity to the legal representatives of the deceased tenant Channappa Poojary. The Appellant will get an opportunity to raise all contentions that may be available to him in law for grant of occupancy rights in respect of the said lands in his favour on the basis of the Will executed by deceased Channappa Poojary. Whether that Will is admissible in evidence or is a genuine Will is a matter which must receive attention of the Land Tribunal. Besides, the Land Tribunal must also address itself as to whether any transfer by way of a Will in favour of person(s) other than spouse, minor sons, unmarried daughters, is permissible in law keeping in mind the rigours of Section 21 read with 2(12) and other applicable provisions of the said Act. The legal position in that behalf has already been expounded by this Court in the case of Sangappa Kalyanappa Bangi (Supra) and Jayamma (Supra). There is no reason to entertain any apprehension, by any party, that the matters in issue will not be adjudicated by the Land Tribunal, keeping in view the provisions of the said Act and the settled legal position expounded in the aforesaid reported decisions.9. The argument of the Appellant that the order passed by the Land Tribunal on 04.10.1980 cannot be allowed to be challenged at this distance of time, in our opinion, is misplaced. We agree with the view expressed by the Division Bench of the High Court that the Land Tribunal committed manifest jurisdictional error by passing an order in favour of the Appellant behind the back of the legal representatives of the deceased tenant/applicant. For, it could not have proceeded with the inquiry behind the back of the legal representatives of the deceased tenant without bringing them on record in the proceedings pending before it. Such exercise of jurisdiction is bordering on passing an order which is nullity in the eyes of law. It would have been a different matter if the Land Tribunal had consciously proceeded on being satisfied that the deceased tenant Applicant has not left behind any legal representative who could espouse his or their cause further. No attempt was made by the Land Tribunal to ascertain about the possibility of any objection from any legal representative of the deceased tenant/Applicant before bestowing occupancy rights in favour of the Appellant on the basis of the alleged Will executed by Channappa Poojary.10. As the order passed by the Land Tribunal is vitiated due to failure to bring on record the legal representatives of deceased Applicant Channappa Poojary and also without considering the mandate of Section 21 of the Act, the objection regarding the manner of interference by the Learned Single Judge of the High Court does not commend to us. The Respondent No. 1 in his writ petition had offered explanation about the circumstances in which he could file the writ petition only after getting knowledge of the order in the 1st week of April, 2004. Further, the plea of laches cannot be countenanced in light of the assertion of the Respondent No. 1 that, taking advantage of his minority, the Appellant succeeded in misleading the Land Tribunal to pass an order in his favour on the basis of an alleged Will executed by Channappa Poojary. This technical plea has been rightly negatived by the High Court in the fact situation of the present case involving the permissibility of transfer of tenancy by a Will to third person who is not covered by the excepted category of persons. Thus, the legal principle expounded in the case of State of Rajasthan v. D.R. Laxmi and Ors., (1996) 6 SCC 445 and Tayabbhai M. Bagasarwalla v. Hind Rubber Industries Pvt. Ltd., 1997(2) R.C.R.(Civil) 473 : 1997(2) R.C.R.(Rent) 682 : (1997) 3 SCC 443 , will be of no avail to the Appellant. The Respondent No. 1 has justly relied on the decisions in the case of Hasham Abbas Sayyad (supra) to buttress his plea that the objection regarding procedural matters cannot come in the way in a case where an order passed by the Tribunal is without jurisdiction as in this case and that issue can be raised at any stage [see Zuari Cement Limited (supra)].11. As aforesaid, the Tribunal must and will have to first consider the legal position as to whether the Appellant can legitimately claim to be a legal heir of the deceased tenant within the meaning of Section 21 read with 2(12) and other applicable provisions of the said Act; and only on recording finding on that issue in favour of the Appellant, further inquiry into the matter regarding the admissibility and genuineness of the alleged Will may become necessary. Since the parties have been relegated before the Land Tribunal, all questions about the genuineness and the legitimacy of their claim can be and will have to be considered by the said Authority in the first place on its own merit and in accordance with law without being influenced by any observation made by the learned Single Judge or the Division Bench of the High Court or for that matter, in the present judgment.12. At the cost of repetition we clarify that the Land Tribunal must examine all the relevant facts necessary for full, complete and effectual adjudication of the claim between the parties keeping in mind the settled legal position in respect of the relevant provisions of the said Act.
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Ram Chand (D) Th Lrs. Vs. Udai Singh @ Daya Ram | -01 marla, Rect. No. 214 Killa 11 area 5 kanals 12 marlas, killa no. 12 area 8 kanal, Rect. No. 255 Killa No. 6/1 area 2 kanals 10 marlas, 6/2 area 2 kanals 17 marlas, 7/1 area 4 kanals 3 marlas, 7/2 area 3 killa 17 marlas Killa 8 area 8 kanals, Rect. 258 killa 16 area 6 kanals 6 marlas, killa 24 area 8 kanals, total area 54 kanals 6 marlas situated in Patti Bedha, Hodel (hereinafter referred to as the "suit land"). 4. The plaintiff (Ram Chand) since dead and now represented by his legal representatives (appellants herein) filed a civil suit out of which these appeals arise against the respondents (defendants) claiming right, title and interest in the suit land. The plaintiff (appellants) also claimed possession of the suit lands from the defendants (respondents). 5. The claim of the plaintiff, in substance, is based on the law of inheritance. It is, inter alia, alleged in the plaint that the suit land originally belonged to one Hiri, son of Bhondu and on his death, the plaintiff claimed his right, title and interest in the suit land as one of the nearest heirs of the deceased Hiri through inheritance. 6. The defendants (respondents) denied the claim of the plaintiff and further denied his right to claim the ownership of the suit land by inheritance through Hiri. The defendants then claimed ownership over the suit land on the basis of a Will said to have been executed in their favour by the erstwhile owner of the suit land. 7. So the basic question, involved in the suit, was who is the owner of the suit land-plaintiff or the defendants. 8. By judgment/decree dated 24.12.1979, the Trial Court (sub-Judge, 1st Class), Palwal decreed the suit against the defendants for possession and held that the plaintiff would be entitled to get only symbolic possession of the suit land because the suit land was in possession of Ram Narain (defendant No.5) as tenant. 9. Being aggrieved by the said judgment/decree, both the parties filed first appeals before the District Judge, Gurgaon being Civil Appeal Nos. 5 and 6 of 1980. 10. The District Judge, by his judgment and order dated 09.04.1980, dismissed both the appeals and affirmed the judgment/decree passed by the Trial Court. 11. Against the said judgment, both plaintiff and defendants filed second appeals before the High Court being R.S.A. No. 1791 of 1980 (filed by the plaintiff) and R.S.A. No.2037 of 1980 (filed by the defendants). 12. The High Court, by the impugned common judgment and order dated 21.11.2011, dismissed R.S.A. No.1791 of 1980 filed by the plaintiff and allowed R.S.A. No.2037 of 1980 filed by the defendants. As a result, the suit came to be dismissed. 13. Against the said judgment, the legal representatives of the original plaintiff, filed these appeals by way of special leave before this Court. 14. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow the appeals and while setting aside the impugned judgment, remand the case to the High Court for deciding the second appeals afresh in accordance with law as indicated below. 15. The reasons to remand the case to the High Court has occasioned due to the reason that the High Court while disposing of second appeals filed by the both parties did not frame any substantial question of law as is required to be framed at the time of admission of the second appeal and proceeded to allow the appeal filed by the defendants and dismiss the appeal filed by the plaintiff. 16. A three Judge Bench of this Court in Santosh Hazari v. Purushottam Tiwari (Deceased) by L.Rs., 2001(3) R.C.R.(Civil) 243 : (2001) 3 SCC 179 had examined the scope of Section 100 of the Code of Civil procedure, 1908 (hereinafter referred to as "the Code"). Justice R. C. Lahoti (as His Lordship then was) speaking for the Bench laid down the following proposition of law in Para 9:"9. The High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal and if it does so it acts illegally and in abnegation or abdication of the duty cast on Court. The existence of substantial question of law is the sine qua non for the exercise of the jurisdiction under the amended Section 100 of the Code. (See Kshitish Chandra Purkait v. Santosh Kumar Purkait, 1997(3) R.C.R.(Civil) 197 : (1997) 5 SCC 438 Panchugopal Barua v. Umesh Chandra Goswami, 1997(1) R.C.R (Rent) 591 : (1997) 4 SCC 413 and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, 1999(2) R.C.R.(Civil) 587 : (1999) 3 SCC 722.) "17. His Lordship then in Paras 10 to 14 succinctly explained the meaning of the words "substantial question of law" and "question of law" and held that in order to admit the second appeal, what is required to be made out by the appellant being sine qua non for exercise of powers under Section 100 of the Code, is existence of "substantial question of law" arising in the case so as to empower the High Court to admit the appeal for final hearing by formulation on such question. In the absence of any substantial question arising in appeal, the same merits dismissal in limine on the ground that the appeal does not involve any substantial question of law within the meaning of Section 100 of the Code. 18. Perusal of the impugned order shows that no such question was formulated except to note the submissions of learned counsel for the appellants that it so arises but not beyond that as to whether it actually arises and, if so, what is that question. 19. In the light of foregoing discussion and keeping in view the law laid down in the case of Santosh Hazari (supra), we are of the considered view that the impugned order is not legally sustainable and thus liable to be set aside. | 1[ds]14. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow the appeals and while setting aside the impugned judgment, remand the case to the High Court for deciding the second appeals afresh in accordance with law as indicated below.The reasons to remand the case to the High Court has occasioned due to the reason that the High Court while disposing of second appeals filed by the both parties did not frame any substantial question of law as is required to be framed at the time of admission of the second appeal and proceeded to allow the appeal filed by the defendants and dismiss the appeal filed by the plaintiff.Perusal of the impugned order shows that no such question was formulated except to note the submissions of learned counsel for the appellants that it so arises but not beyond that as to whether it actually arises and, if so, what is that question. | 1 | 1,334 | 175 | ### 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:
-01 marla, Rect. No. 214 Killa 11 area 5 kanals 12 marlas, killa no. 12 area 8 kanal, Rect. No. 255 Killa No. 6/1 area 2 kanals 10 marlas, 6/2 area 2 kanals 17 marlas, 7/1 area 4 kanals 3 marlas, 7/2 area 3 killa 17 marlas Killa 8 area 8 kanals, Rect. 258 killa 16 area 6 kanals 6 marlas, killa 24 area 8 kanals, total area 54 kanals 6 marlas situated in Patti Bedha, Hodel (hereinafter referred to as the "suit land"). 4. The plaintiff (Ram Chand) since dead and now represented by his legal representatives (appellants herein) filed a civil suit out of which these appeals arise against the respondents (defendants) claiming right, title and interest in the suit land. The plaintiff (appellants) also claimed possession of the suit lands from the defendants (respondents). 5. The claim of the plaintiff, in substance, is based on the law of inheritance. It is, inter alia, alleged in the plaint that the suit land originally belonged to one Hiri, son of Bhondu and on his death, the plaintiff claimed his right, title and interest in the suit land as one of the nearest heirs of the deceased Hiri through inheritance. 6. The defendants (respondents) denied the claim of the plaintiff and further denied his right to claim the ownership of the suit land by inheritance through Hiri. The defendants then claimed ownership over the suit land on the basis of a Will said to have been executed in their favour by the erstwhile owner of the suit land. 7. So the basic question, involved in the suit, was who is the owner of the suit land-plaintiff or the defendants. 8. By judgment/decree dated 24.12.1979, the Trial Court (sub-Judge, 1st Class), Palwal decreed the suit against the defendants for possession and held that the plaintiff would be entitled to get only symbolic possession of the suit land because the suit land was in possession of Ram Narain (defendant No.5) as tenant. 9. Being aggrieved by the said judgment/decree, both the parties filed first appeals before the District Judge, Gurgaon being Civil Appeal Nos. 5 and 6 of 1980. 10. The District Judge, by his judgment and order dated 09.04.1980, dismissed both the appeals and affirmed the judgment/decree passed by the Trial Court. 11. Against the said judgment, both plaintiff and defendants filed second appeals before the High Court being R.S.A. No. 1791 of 1980 (filed by the plaintiff) and R.S.A. No.2037 of 1980 (filed by the defendants). 12. The High Court, by the impugned common judgment and order dated 21.11.2011, dismissed R.S.A. No.1791 of 1980 filed by the plaintiff and allowed R.S.A. No.2037 of 1980 filed by the defendants. As a result, the suit came to be dismissed. 13. Against the said judgment, the legal representatives of the original plaintiff, filed these appeals by way of special leave before this Court. 14. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow the appeals and while setting aside the impugned judgment, remand the case to the High Court for deciding the second appeals afresh in accordance with law as indicated below. 15. The reasons to remand the case to the High Court has occasioned due to the reason that the High Court while disposing of second appeals filed by the both parties did not frame any substantial question of law as is required to be framed at the time of admission of the second appeal and proceeded to allow the appeal filed by the defendants and dismiss the appeal filed by the plaintiff. 16. A three Judge Bench of this Court in Santosh Hazari v. Purushottam Tiwari (Deceased) by L.Rs., 2001(3) R.C.R.(Civil) 243 : (2001) 3 SCC 179 had examined the scope of Section 100 of the Code of Civil procedure, 1908 (hereinafter referred to as "the Code"). Justice R. C. Lahoti (as His Lordship then was) speaking for the Bench laid down the following proposition of law in Para 9:"9. The High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal and if it does so it acts illegally and in abnegation or abdication of the duty cast on Court. The existence of substantial question of law is the sine qua non for the exercise of the jurisdiction under the amended Section 100 of the Code. (See Kshitish Chandra Purkait v. Santosh Kumar Purkait, 1997(3) R.C.R.(Civil) 197 : (1997) 5 SCC 438 Panchugopal Barua v. Umesh Chandra Goswami, 1997(1) R.C.R (Rent) 591 : (1997) 4 SCC 413 and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, 1999(2) R.C.R.(Civil) 587 : (1999) 3 SCC 722.) "17. His Lordship then in Paras 10 to 14 succinctly explained the meaning of the words "substantial question of law" and "question of law" and held that in order to admit the second appeal, what is required to be made out by the appellant being sine qua non for exercise of powers under Section 100 of the Code, is existence of "substantial question of law" arising in the case so as to empower the High Court to admit the appeal for final hearing by formulation on such question. In the absence of any substantial question arising in appeal, the same merits dismissal in limine on the ground that the appeal does not involve any substantial question of law within the meaning of Section 100 of the Code. 18. Perusal of the impugned order shows that no such question was formulated except to note the submissions of learned counsel for the appellants that it so arises but not beyond that as to whether it actually arises and, if so, what is that question. 19. In the light of foregoing discussion and keeping in view the law laid down in the case of Santosh Hazari (supra), we are of the considered view that the impugned order is not legally sustainable and thus liable to be set aside.
### Response:
1
### Explanation:
14. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow the appeals and while setting aside the impugned judgment, remand the case to the High Court for deciding the second appeals afresh in accordance with law as indicated below.The reasons to remand the case to the High Court has occasioned due to the reason that the High Court while disposing of second appeals filed by the both parties did not frame any substantial question of law as is required to be framed at the time of admission of the second appeal and proceeded to allow the appeal filed by the defendants and dismiss the appeal filed by the plaintiff.Perusal of the impugned order shows that no such question was formulated except to note the submissions of learned counsel for the appellants that it so arises but not beyond that as to whether it actually arises and, if so, what is that question.
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State Of Madhya Pradesh Vs. Bhailal Bhai & Ors | remedy of mandamus. Again, where even if there is not such delay the Government or the statutory authority against whom the consequential relief is prayed for raises a prima facie triable issue as regards the availability of such relief on the merits on the grounds like limitation the Court should ordinarily refuse to issue the writ of mandamus for such payment. In both these kinds of cases it will be sound use of discretion to leave the party to seek his remedy by the ordinary mode of action in a civil court and to refuse to exercise in his favour the extraordinary remedy under Art. 226 of the Constitution.18. The prayer for refund has been allowed by the High Court in the applications out of which Civil Appeals Nos. 362-377 of 1962 and Civil Appeals Nos. 861-867 of 1962 and Civil Appeals No. 25 of 1963 have arisen. It appears that the tax provisions under which these taxes had been assessed and paid were declared void by the High Court of Madhya Bharat in their decision in Mohammad Siddiq v. State of Madhya Bharat on January 17, 1956 : (AIR 1956 Madh-B 214). Later, on August 27, 1957 the Appellate Authority Sales Tax in Madhya Bharat made an order relying on the High Courts decision mentioned above. The petitioners claim to have discovered their mistake in making the payments after they came to know of these decisions. It is reasonable to think however that the petitioners must have discovered their mistake as soon as the High Courts decision in the case of Mohammed Siddiq v. State of Madhya Bharat dated January 17, 1956 : (AIR 1956 Madh-B 214) became known to them. All these 16 applications were made within less than three years from the 17th January 1956. The High Court has taken the view that this was not unreasonable delay and in that view has ordered refund. This appears to us to be a second and judicial exercise of discretion with which this Court ought not to interfere. It may be added that no triable issue as regards the availability of this consequential relief was raised before the High Court nor has any been suggested before us. The order of refund made by the High Court in these cases cannot therefore be disturbed.19. The position in Civil Appeals Nos. 861 to 867 of 1962 is however different. The applications out of which these appeals have arisen were made in September 1959, i.e., about three years and eight months after January 17, 1956 when the High Court of Madhya Bharat gave their decision declaring the tax provisions in question to be void.20. It was necessary for the High Court to consider this question of delay before any order for refund was made. It does not appear however that any attention was paid to this question. In making the orders for refund in each of these cases the High Court merely said this :-"The present case is governed by Bhailal Bhais case, 1960 M. P. C. 304. Learned Government Advocate formally raised the question of the remedy open to the petitioner for refund of tax in order to keep the point in the Supreme Court. We accordingly allow this petition and issue a writ directing the opponents to refund to the applicant firm the amount of tax collected from it during the above-mentioned period."21. The learned Judges appear to have failed to notice that the delay in these petitions was more than the delay in the petition made in Bhailal Bhais case, 1960 M. P. C. 304 out of which Civil Appeal No. 362 has arisen. On behalf of the respondents-petitioners in these appeals (C. A. Nos. 861 to 867 of 1962) Mr. Andley has argued that the delay in these cases even is not such as would justify refusal of the order for refund. We argued that assuming that the remedy of recovery by action in a civil court stood barred on the date these applications were made that would be no reason to refuse relief under Art. 226 of the Constitution. Learned Counsel is right in his submission that the provisions of the Limitation Act do not as such apply to the granting of relief under Art. 226. It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Art. 226 can be measured. This Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the Court to hold that it is unreasonable. The period of limitation prescribed for recovery of money paid by mistake under the Limitation Act is three years from the date when the mistake is known. If the mistake was known in these cases on or shortly after January 17, 1956 the delay in making these applications should be considered unreasonable. If, on the other hand, as Mr. Andley seems to argue, that the mistake discovered much later this would be a controversial fact which cannot conveniently be decided in writ proceedings. In either view of the matter we are of opinion the orders for refund made by the High Court in these seven cases cannot be sustained.22. The application out of which Civil Appeal No. 25 of 1963 has arisen was also made in 1958, that is, within less than three years from the date of the High Courts decision in AIR 1956 Madh-B. 214. The High Court was therefore right in stating in its judgment in this case that it is governed by Bhailal Bhais case, 1960 MPC 304. We see no reason to interfere with the order for refund made by the High Court in this case. | 1[ds]10. The tax could still be good if even though it contravened the provisions of Art. 301 it came within the saving provisions of Art. 304(a) of the Constitution. That Article provides in its cl. (a) that notwithstanding anything in Article 301 or Art. 303 the Legislature of a State may by law impose on goods imported from other States any tax to which similar goods manufactured or produced if that State are subject so however as not to discriminate between goods so imported and goods so manufactured or produced. An attempt was made on behalf of the State before the High Court and also before us to construe the notification mentioned above to mean that not only the tobacco imported from other States but also similar goods manufactured or produced in Madhya Bharat were subject to this tax and at the same rate. It was argued that a dealer in these goods who was an importer and so sold goods imported by him into Madhya Bharat would also be selling goods not so imported but manufactured and produced in the State. We are prepared to agree that that may well be so. What we are unable to see however is that in respect of sales of such other goods this person would be liable to any tax under thedo not think so. In our opinion, the only reasonable interpretation of the notification as it stands, viz., that tax on tobacco leaves, manufactured tobacco and tobacco used for Bidi manufacturing would be payable at the point of sale by the importer, is that only the sale of goods which the importer had imported would be liable to 0 tax and not sale of any other goods by him. If the intention had been as suggested by the learned Advocate-General that though the tax is payable at the point of sale by an importer the sale by the same person of goods manufactured or produced in Madhya Bharat would also be liable to tax. The word "importer" would not have been used in Column 3 but the word "dealer" would have been used and the point of sale would have been indicated by some other words as the "first sale in Madhya Bharat" or "the sale to the retailer in Madhya Bharat" as the rule-making authority chose.There can therefore be no escape from the conclusion that similar goods manufactured or produced in the State of Madhya Bharat have not been subjected to the tax which tobacco leaves, manufactured tobacco and tobacco used for Bidi manufacturing, imported from other States have to pay on sale by the importer. This tax is therefore not within the saving provisions of Art. 304(a). As already pointed out it contravenes the provisions of Art. 301 of the Constitution. The tax, has therefore been rightly held by the High Court to be invalid. It is clear that the assessment of tax under these notifications was thus invalid in law.We see no reason to think that the High Courts have not got this power. If a right has been infringed - whether a fundamental right or a statutory right - and the aggrieved party comes to the Court for enforcement of the right it will not be giving complete relief if the Court merely declares the existence of such right or the fact that that existing right has been infringed. Where there has been only a threat to infringe the right, an order commanding the Government or other statutory authority not to take the action contemplated would be sufficient. It has been held by this Court that where there has been a threat only and the right has not been actually infringed an application under Art. 226 would lie and the courts would give necessary relief by making an order in the nature of injunction. It will hardly be reasonable to say that while the Court will grant relief by such command in the nature of an order of injunction where the invasion of a right has been merely threatened the court must still refuse, where the right has been actually invaded, to give the consequential relief and content itself with merely a declaration that the right exists and has been invaded or with merely quashing the illegal order made.16. For the reasons given above, we are clearly of opinion that the High Courts have power for the purpose of enforcement of fundamental rights and statutory rights to give consequential relief by ordering repayment of money realised by the Government without the authority of law.At the same time we cannot lose sight of the fact that the special remedy provided in Art. 226 is not intended to supersede completely the modes of obtaining relief by an action in a civil court or to deny defences legitimately open in such actions. It has been made clear more than once that the power to give relief under Art. 226 is a discretionary power. This is specially true in the case of power to issue writs in the nature of mandamus. Among the several matters which the High Courts rightly take into consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it. Another is the nature of controversy of facts and law that may have to be decided as regards the availability of consequential relief. Thus, where, as in these cases, a person comes to the court for relief under Art. 226 on the allegation that he has been assessed to tax under a void legislation and having paid it under a mistake is entitled to get it back, the Court, if it finds that the assessment was void, being made under a void provision of law, and the payment was made by mistake, is still not bound to exercise its discretion directing repayment. Whether repayment should be ordered in the exercise of this discretion will depend in each case on its own facts and circumstances. It is not easy nor is it desirable to lay down any rule for universal application. It may however be stated as a general rule that if there has been unreasonable delay the Court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus. Again, where even if there is not such delay the Government or the statutory authority against whom the consequential relief is prayed for raises a prima facie triable issue as regards the availability of such relief on the merits on the grounds like limitation the Court should ordinarily refuse to issue the writ of mandamus for such payment. In both these kinds of cases it will be sound use of discretion to leave the party to seek his remedy by the ordinary mode of action in a civil court and to refuse to exercise in his favour the extraordinary remedy under Art. 226 of theappears to us to be a second and judicial exercise of discretion with which this Court ought not to interfere. It may be added that no triable issue as regards the availability of this consequential relief was raised before the High Court nor has any been suggested before us. The order of refund made by the High Court in these cases cannot therefore beargued that assuming that the remedy of recovery by action in a civil court stood barred on the date these applications were made that would be no reason to refuse relief under Art. 226 of the Constitution. Learned Counsel is right in his submission that the provisions of the Limitation Act do not as such apply to the granting of relief under Art. 226. It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Art. 226 can be measured. This Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the Court to hold that it is unreasonable. The period of limitation prescribed for recovery of money paid by mistake under the Limitation Act is three years from the date when the mistake is known. If the mistake was known in these cases on or shortly after January 17, 1956 the delay in making these applications should be considered unreasonable. If, on the other hand, as Mr. Andley seems to argue, that the mistake discovered much later this would be a controversial fact which cannot conveniently be decided in writ proceedings. In either view of the matter we are of opinion the orders for refund made by the High Court in these seven cases cannot be sustained.22. The application out of which Civil Appeal No. 25 of 1963 has arisen was also made in 1958, that is, within less than three years from the date of the High Courts decision in AIR 1956 Madh-B. 214. The High Court was therefore right in stating in its judgment in this case that it is governed by Bhailal Bhais case, 1960 MPC 304. We see no reason to interfere with the order for refund made by the High Court in this case. | 1 | 4,627 | 1,684 | ### Instruction:
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remedy of mandamus. Again, where even if there is not such delay the Government or the statutory authority against whom the consequential relief is prayed for raises a prima facie triable issue as regards the availability of such relief on the merits on the grounds like limitation the Court should ordinarily refuse to issue the writ of mandamus for such payment. In both these kinds of cases it will be sound use of discretion to leave the party to seek his remedy by the ordinary mode of action in a civil court and to refuse to exercise in his favour the extraordinary remedy under Art. 226 of the Constitution.18. The prayer for refund has been allowed by the High Court in the applications out of which Civil Appeals Nos. 362-377 of 1962 and Civil Appeals Nos. 861-867 of 1962 and Civil Appeals No. 25 of 1963 have arisen. It appears that the tax provisions under which these taxes had been assessed and paid were declared void by the High Court of Madhya Bharat in their decision in Mohammad Siddiq v. State of Madhya Bharat on January 17, 1956 : (AIR 1956 Madh-B 214). Later, on August 27, 1957 the Appellate Authority Sales Tax in Madhya Bharat made an order relying on the High Courts decision mentioned above. The petitioners claim to have discovered their mistake in making the payments after they came to know of these decisions. It is reasonable to think however that the petitioners must have discovered their mistake as soon as the High Courts decision in the case of Mohammed Siddiq v. State of Madhya Bharat dated January 17, 1956 : (AIR 1956 Madh-B 214) became known to them. All these 16 applications were made within less than three years from the 17th January 1956. The High Court has taken the view that this was not unreasonable delay and in that view has ordered refund. This appears to us to be a second and judicial exercise of discretion with which this Court ought not to interfere. It may be added that no triable issue as regards the availability of this consequential relief was raised before the High Court nor has any been suggested before us. The order of refund made by the High Court in these cases cannot therefore be disturbed.19. The position in Civil Appeals Nos. 861 to 867 of 1962 is however different. The applications out of which these appeals have arisen were made in September 1959, i.e., about three years and eight months after January 17, 1956 when the High Court of Madhya Bharat gave their decision declaring the tax provisions in question to be void.20. It was necessary for the High Court to consider this question of delay before any order for refund was made. It does not appear however that any attention was paid to this question. In making the orders for refund in each of these cases the High Court merely said this :-"The present case is governed by Bhailal Bhais case, 1960 M. P. C. 304. Learned Government Advocate formally raised the question of the remedy open to the petitioner for refund of tax in order to keep the point in the Supreme Court. We accordingly allow this petition and issue a writ directing the opponents to refund to the applicant firm the amount of tax collected from it during the above-mentioned period."21. The learned Judges appear to have failed to notice that the delay in these petitions was more than the delay in the petition made in Bhailal Bhais case, 1960 M. P. C. 304 out of which Civil Appeal No. 362 has arisen. On behalf of the respondents-petitioners in these appeals (C. A. Nos. 861 to 867 of 1962) Mr. Andley has argued that the delay in these cases even is not such as would justify refusal of the order for refund. We argued that assuming that the remedy of recovery by action in a civil court stood barred on the date these applications were made that would be no reason to refuse relief under Art. 226 of the Constitution. Learned Counsel is right in his submission that the provisions of the Limitation Act do not as such apply to the granting of relief under Art. 226. It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Art. 226 can be measured. This Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the Court to hold that it is unreasonable. The period of limitation prescribed for recovery of money paid by mistake under the Limitation Act is three years from the date when the mistake is known. If the mistake was known in these cases on or shortly after January 17, 1956 the delay in making these applications should be considered unreasonable. If, on the other hand, as Mr. Andley seems to argue, that the mistake discovered much later this would be a controversial fact which cannot conveniently be decided in writ proceedings. In either view of the matter we are of opinion the orders for refund made by the High Court in these seven cases cannot be sustained.22. The application out of which Civil Appeal No. 25 of 1963 has arisen was also made in 1958, that is, within less than three years from the date of the High Courts decision in AIR 1956 Madh-B. 214. The High Court was therefore right in stating in its judgment in this case that it is governed by Bhailal Bhais case, 1960 MPC 304. We see no reason to interfere with the order for refund made by the High Court in this case.
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order commanding the Government or other statutory authority not to take the action contemplated would be sufficient. It has been held by this Court that where there has been a threat only and the right has not been actually infringed an application under Art. 226 would lie and the courts would give necessary relief by making an order in the nature of injunction. It will hardly be reasonable to say that while the Court will grant relief by such command in the nature of an order of injunction where the invasion of a right has been merely threatened the court must still refuse, where the right has been actually invaded, to give the consequential relief and content itself with merely a declaration that the right exists and has been invaded or with merely quashing the illegal order made.16. For the reasons given above, we are clearly of opinion that the High Courts have power for the purpose of enforcement of fundamental rights and statutory rights to give consequential relief by ordering repayment of money realised by the Government without the authority of law.At the same time we cannot lose sight of the fact that the special remedy provided in Art. 226 is not intended to supersede completely the modes of obtaining relief by an action in a civil court or to deny defences legitimately open in such actions. It has been made clear more than once that the power to give relief under Art. 226 is a discretionary power. This is specially true in the case of power to issue writs in the nature of mandamus. Among the several matters which the High Courts rightly take into consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it. Another is the nature of controversy of facts and law that may have to be decided as regards the availability of consequential relief. Thus, where, as in these cases, a person comes to the court for relief under Art. 226 on the allegation that he has been assessed to tax under a void legislation and having paid it under a mistake is entitled to get it back, the Court, if it finds that the assessment was void, being made under a void provision of law, and the payment was made by mistake, is still not bound to exercise its discretion directing repayment. Whether repayment should be ordered in the exercise of this discretion will depend in each case on its own facts and circumstances. It is not easy nor is it desirable to lay down any rule for universal application. It may however be stated as a general rule that if there has been unreasonable delay the Court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus. Again, where even if there is not such delay the Government or the statutory authority against whom the consequential relief is prayed for raises a prima facie triable issue as regards the availability of such relief on the merits on the grounds like limitation the Court should ordinarily refuse to issue the writ of mandamus for such payment. In both these kinds of cases it will be sound use of discretion to leave the party to seek his remedy by the ordinary mode of action in a civil court and to refuse to exercise in his favour the extraordinary remedy under Art. 226 of theappears to us to be a second and judicial exercise of discretion with which this Court ought not to interfere. It may be added that no triable issue as regards the availability of this consequential relief was raised before the High Court nor has any been suggested before us. The order of refund made by the High Court in these cases cannot therefore beargued that assuming that the remedy of recovery by action in a civil court stood barred on the date these applications were made that would be no reason to refuse relief under Art. 226 of the Constitution. Learned Counsel is right in his submission that the provisions of the Limitation Act do not as such apply to the granting of relief under Art. 226. It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Art. 226 can be measured. This Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the Court to hold that it is unreasonable. The period of limitation prescribed for recovery of money paid by mistake under the Limitation Act is three years from the date when the mistake is known. If the mistake was known in these cases on or shortly after January 17, 1956 the delay in making these applications should be considered unreasonable. If, on the other hand, as Mr. Andley seems to argue, that the mistake discovered much later this would be a controversial fact which cannot conveniently be decided in writ proceedings. In either view of the matter we are of opinion the orders for refund made by the High Court in these seven cases cannot be sustained.22. The application out of which Civil Appeal No. 25 of 1963 has arisen was also made in 1958, that is, within less than three years from the date of the High Courts decision in AIR 1956 Madh-B. 214. The High Court was therefore right in stating in its judgment in this case that it is governed by Bhailal Bhais case, 1960 MPC 304. We see no reason to interfere with the order for refund made by the High Court in this case.
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GOPAL NAGAR COOPERATIVE HOUSE BUILDING SOCIETY LTD Vs. MOHD. ASLAM @ ABU BAKAR AND ETC | R. Banumathi, J. 1. These appeals arise out of order dated 29th September, 2016 of the High Court setting aside Orders dated 29th October, 2015 and 2nd November, 2015 passed by the Trial Court in and by which the Trial Court has set aside the preliminary decree as well as the final decree passed in favour of the respondents.2. The appellant-Society claims to have purchased the entire 93.25 acres of land in Survey NO(s).148-155 from six joint owners including Mohd. Ismail, the father of respondent no.1, by a sale deed dated 20th May, 1980. The appellant-Society claims to have developed the said land by making the house plots numbering 1197 plots and is said to have delivered the possession of the plots to its 1197 members. The appellant-Society also claims that many of its members have built their houses on the said plots which is refuted by the respondents.3. Respondent No(s).1 and 3 to 8 have filed suit for partition in respect of certain extent of land in Survey No(s).148-155 in O.S. NO.21 of 2004. In the said suit, preliminary decree dated 14th November, 2005 and final decree dated 17th April, 2007 were passed. In both, preliminary and final decree stage the appellant-Society herein was set exparte. According to the appellant-Society, they were not served with summons and that the summons were served on a wrong person.4. Having learnt of the ex-parte decrees, on 22nd May, 2007 the appellant-Society filed I.A.NO(s).232/2007 and 233/2007 to set aside the preliminary and final decrees. By order dated 29th August, 2008, the Third Addl. Judge allowed both the applications-I.A.NO(s).232/2007 and 233/2007, by observing that the ex-parte decree was obtained by keeping the appellant in the dark.5. Even when those applications were pending, the respondents filed O.S. No.2980 of 2007 challenging the sale deed dated 20th May, 1980 and prayed for setting aside the same. In the said suit - O.S. No.2980 of 2007, the first respondent filed I.A. No.1208 of 2013 seeking extension of time to comply with the conditional order and the said application was dismissed by 25th October, 2013. Subsequently, as no evidence was adduced in O.S. No.2980 of 2007 the same came to be dismissed. Challenging the orders passed in I.A.NO(s).232/2007 and 233/2007, the first respondent filed C.R.P. No.462 of 2009 and C.R.P. No.803 of 2009 before the High Court and the same was allowed and the matter was remanded to the Trial Court on the ground that the trial court had not given detailed reasons.6. On remand, the Third Additional Judge by a well reasoned order dated 29th October, 2015 and 2nd November, 2015 once again set aside the preliminary and final decree dated 14th November, 2005 and 17th April, 2007 respectively. Subsequently, the appellant-Society has also filed written statement in the partition suit i.e. O.S.No.21/2004.7. Being aggrieved by order dated 29th October, 2015 and 2nd November, 2015 setting aside the ex-parte preliminary and final decree dated 14th November, 2005 and 17th April, 2007 respectively, the first respondent filed revision before the High Court i.e. C.R.P. NO.1214 of 2016 and C.R.P. No.1231 of 2016. The first respondent has also filed C.R.P. NO.820 of 2014 for restoration of their suit, O.S. No.2980 of 2007. By impugned order, the High Court has allowed all the three revisions and again remanded the matter to the Third Additional Judge for fresh consideration which is impugned in these appeals.8. We have heard Mr. C.U. Singh, learned senior counsel, and Ms. Madhvi Divan, learned counsel, both appearing for the appellant-Society and Mr. Anupam Lal Das, learned counsel appearing for the respondents and also perused the impugned order and materials on record.9. By perusal of Orders dated 29th October, 2015 and 2nd November, 2015, we find that the order of the Third Additional Judge setting aside the preliminary and final decrees dated dated 14th November, 2005 and 17th April, 2007 respectively, is upon consideration of the averments in the application and well reasoned. The appellant-Society claims to have purchased 93.25 acres in Survey No(s).148-155 from the six joint owners including Mohd. Ismail, the father of respondent no.1. Out of the said property of 93.25 acres in Survey No(s).148-155, certain extent of land is the suit property in the partition suit in O.S. No.21 of 2004. Sine the appellant-Society is said to have purchased the extent of 93.25 acres in Survey NO(s).148-155, a reasonable opportunity has to be afforded to the appellant-Society. More so, when the appellant-Society claims to have purchased the property way back in the year 1980 by sale deed dated 20th May, 1980 and is said to have not only developed the land by forming the layout of house plots but also allotted the same to its members. When the order of the Third Additional Judge is a well considered order, in our view, the High Court ought not to have set aside the same and remanded the matter back to the trial court. In such view of the matter, the impugned order of the High Court cannot be sustained and is liable to be set aside.10. Mr. Anupam Lal Das, learned counsel appearing for the first respondent, submitted that the first respondent-plaintiff shall not take further adjournment in O.S. NO.21 of 2004 and will proceed with the trial. The findings of the Trial Court as well as the High Court insofar as the use of the expression fraud is concerned, the same shall be construed as expression of views only for the purpose of the impugned order and shall not have any bearing on the merits of the contentions of the parties in the trial. | 1[ds]9. By perusal of Orders dated 29th October, 2015 and 2nd November, 2015, we find that the order of the Third Additional Judge setting aside the preliminary and final decrees dated dated 14th November, 2005 and 17th April, 2007 respectively, is upon consideration of the averments in the application and well reasoned. The appellant-Society claims to have purchased 93.25 acres in Survey No(s).148-155 from the six joint owners including Mohd. Ismail, the father of respondent no.1. Out of the said property of 93.25 acres in Survey No(s).148-155, certain extent of land is the suit property in the partition suit in O.S. No.21 of 2004. Sine the appellant-Society is said to have purchased the extent of 93.25 acres in Survey NO(s).148-155, a reasonable opportunity has to be afforded to the appellant-Society. More so, when the appellant-Society claims to have purchased the property way back in the year 1980 by sale deed dated 20th May, 1980 and is said to have not only developed the land by forming the layout of house plots but also allotted the same to its members. When the order of the Third Additional Judge is a well considered order, in our view, the High Court ought not to have set aside the same and remanded the matter back to the trial court. In such view of the matter, the impugned order of the High Court cannot be sustained and is liable to be set asideThe findings of the Trial Court as well as the High Court insofar as the use of the expression fraud is concerned, the same shall be construed as expression of views only for the purpose of the impugned order and shall not have any bearing on the merits of the contentions of the parties in the trial. | 1 | 1,076 | 336 | ### Instruction:
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R. Banumathi, J. 1. These appeals arise out of order dated 29th September, 2016 of the High Court setting aside Orders dated 29th October, 2015 and 2nd November, 2015 passed by the Trial Court in and by which the Trial Court has set aside the preliminary decree as well as the final decree passed in favour of the respondents.2. The appellant-Society claims to have purchased the entire 93.25 acres of land in Survey NO(s).148-155 from six joint owners including Mohd. Ismail, the father of respondent no.1, by a sale deed dated 20th May, 1980. The appellant-Society claims to have developed the said land by making the house plots numbering 1197 plots and is said to have delivered the possession of the plots to its 1197 members. The appellant-Society also claims that many of its members have built their houses on the said plots which is refuted by the respondents.3. Respondent No(s).1 and 3 to 8 have filed suit for partition in respect of certain extent of land in Survey No(s).148-155 in O.S. NO.21 of 2004. In the said suit, preliminary decree dated 14th November, 2005 and final decree dated 17th April, 2007 were passed. In both, preliminary and final decree stage the appellant-Society herein was set exparte. According to the appellant-Society, they were not served with summons and that the summons were served on a wrong person.4. Having learnt of the ex-parte decrees, on 22nd May, 2007 the appellant-Society filed I.A.NO(s).232/2007 and 233/2007 to set aside the preliminary and final decrees. By order dated 29th August, 2008, the Third Addl. Judge allowed both the applications-I.A.NO(s).232/2007 and 233/2007, by observing that the ex-parte decree was obtained by keeping the appellant in the dark.5. Even when those applications were pending, the respondents filed O.S. No.2980 of 2007 challenging the sale deed dated 20th May, 1980 and prayed for setting aside the same. In the said suit - O.S. No.2980 of 2007, the first respondent filed I.A. No.1208 of 2013 seeking extension of time to comply with the conditional order and the said application was dismissed by 25th October, 2013. Subsequently, as no evidence was adduced in O.S. No.2980 of 2007 the same came to be dismissed. Challenging the orders passed in I.A.NO(s).232/2007 and 233/2007, the first respondent filed C.R.P. No.462 of 2009 and C.R.P. No.803 of 2009 before the High Court and the same was allowed and the matter was remanded to the Trial Court on the ground that the trial court had not given detailed reasons.6. On remand, the Third Additional Judge by a well reasoned order dated 29th October, 2015 and 2nd November, 2015 once again set aside the preliminary and final decree dated 14th November, 2005 and 17th April, 2007 respectively. Subsequently, the appellant-Society has also filed written statement in the partition suit i.e. O.S.No.21/2004.7. Being aggrieved by order dated 29th October, 2015 and 2nd November, 2015 setting aside the ex-parte preliminary and final decree dated 14th November, 2005 and 17th April, 2007 respectively, the first respondent filed revision before the High Court i.e. C.R.P. NO.1214 of 2016 and C.R.P. No.1231 of 2016. The first respondent has also filed C.R.P. NO.820 of 2014 for restoration of their suit, O.S. No.2980 of 2007. By impugned order, the High Court has allowed all the three revisions and again remanded the matter to the Third Additional Judge for fresh consideration which is impugned in these appeals.8. We have heard Mr. C.U. Singh, learned senior counsel, and Ms. Madhvi Divan, learned counsel, both appearing for the appellant-Society and Mr. Anupam Lal Das, learned counsel appearing for the respondents and also perused the impugned order and materials on record.9. By perusal of Orders dated 29th October, 2015 and 2nd November, 2015, we find that the order of the Third Additional Judge setting aside the preliminary and final decrees dated dated 14th November, 2005 and 17th April, 2007 respectively, is upon consideration of the averments in the application and well reasoned. The appellant-Society claims to have purchased 93.25 acres in Survey No(s).148-155 from the six joint owners including Mohd. Ismail, the father of respondent no.1. Out of the said property of 93.25 acres in Survey No(s).148-155, certain extent of land is the suit property in the partition suit in O.S. No.21 of 2004. Sine the appellant-Society is said to have purchased the extent of 93.25 acres in Survey NO(s).148-155, a reasonable opportunity has to be afforded to the appellant-Society. More so, when the appellant-Society claims to have purchased the property way back in the year 1980 by sale deed dated 20th May, 1980 and is said to have not only developed the land by forming the layout of house plots but also allotted the same to its members. When the order of the Third Additional Judge is a well considered order, in our view, the High Court ought not to have set aside the same and remanded the matter back to the trial court. In such view of the matter, the impugned order of the High Court cannot be sustained and is liable to be set aside.10. Mr. Anupam Lal Das, learned counsel appearing for the first respondent, submitted that the first respondent-plaintiff shall not take further adjournment in O.S. NO.21 of 2004 and will proceed with the trial. The findings of the Trial Court as well as the High Court insofar as the use of the expression fraud is concerned, the same shall be construed as expression of views only for the purpose of the impugned order and shall not have any bearing on the merits of the contentions of the parties in the trial.
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9. By perusal of Orders dated 29th October, 2015 and 2nd November, 2015, we find that the order of the Third Additional Judge setting aside the preliminary and final decrees dated dated 14th November, 2005 and 17th April, 2007 respectively, is upon consideration of the averments in the application and well reasoned. The appellant-Society claims to have purchased 93.25 acres in Survey No(s).148-155 from the six joint owners including Mohd. Ismail, the father of respondent no.1. Out of the said property of 93.25 acres in Survey No(s).148-155, certain extent of land is the suit property in the partition suit in O.S. No.21 of 2004. Sine the appellant-Society is said to have purchased the extent of 93.25 acres in Survey NO(s).148-155, a reasonable opportunity has to be afforded to the appellant-Society. More so, when the appellant-Society claims to have purchased the property way back in the year 1980 by sale deed dated 20th May, 1980 and is said to have not only developed the land by forming the layout of house plots but also allotted the same to its members. When the order of the Third Additional Judge is a well considered order, in our view, the High Court ought not to have set aside the same and remanded the matter back to the trial court. In such view of the matter, the impugned order of the High Court cannot be sustained and is liable to be set asideThe findings of the Trial Court as well as the High Court insofar as the use of the expression fraud is concerned, the same shall be construed as expression of views only for the purpose of the impugned order and shall not have any bearing on the merits of the contentions of the parties in the trial.
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State of Rajasthan & Another Vs. Ghasiram Mangilal & Others | was bound to repay the amount which had been collected but it declined to grant any relief on the ground that nothing had been stated in the writ petition as to how much amount of tax had been paid by the respondent and when the same had been paid.5. The principal contention that has been raised by the learned counsel for the State is that the notification had been validly promulgated in exercise of the power conferred under Section 4(2) of the Act. It exempted from tax the sale of "Bardana" which meant gunny bags made from jute and did not mean containers of all kinds made from wood or metal, etc. The exemption, however, contained an exception or a saving clause, namely, that it did not cover the levy of sales tax "on the first point at the hands of an importer in the series of sales in the State." It is submitted that the High Court was in error in holding (a) that "Bardana" meant all kinds of containers and was not confined merely to gunny bags and (b) that there was contravention of Article 301 of the Constitution and Article 304(a) could be of no assistance to the State.6. Articles 301 and 304 of the Constitution may be noticed at this stage. Article 301 appears in the beginning of Part XIII which is headed as "trade, commerce and intercourse within the territory of India". According to this Article subject to the other provisions of this Part, trade, commerce and intercourse throughout the territory of India shall be free. Article 304(a) lays down that notwithstanding anything in Article 301 or Article 303 (with which we are not concerned) the Legislature of a State may by law impose on goods imported from other States or the Union Territories any tax to which similar goods manufactured or produced in that State are subject so as not to discriminate between goods so imported and goods so manufactured or produced. The construction or interpretation which has been commended by the learned counsel for the State of Article 304(a) is that the State has been empowered to impose tax on goods imported from other States or from the Union Territories where goods of the same nature are not being manufactured in the State and if they are being manufactured then the tax had to be levied in such a way that there should be no discrimination between the goods so imported and the goods which are manufactured or produced in the State. It is pointed out that in the present case gunny bags made of jute are imported from outside Rajasthan and admittedly they are not being manufactured in the State. The tax can, therefore, be levied as no question of discrimination can arise. On the other hand, learned counsel for the respondent has called attention to a decision of this Court in Kalyani Stores v. The State of Orissa and Others (1966 (1) SCR 865 ) in which the facts are some-what apposite. There an excise duty had been imposed on "foreign liquor" imported into the State. In the majority judgment this is what was observed at page 872 :"Exercise of power under Article 304(a) can only be effective if the tax or duty is imposed on goods imported from other States and the tax or duty imposed on similar goods manufactured or produced in that State are such that there is no discrimination against imported goods. As no foreign liquor is produced or manufactured in the State of Orissa the power to legislate given by Article 304 is not available and the restriction which is declared on the freedom of trade, commerce or intercourse by Article 301 of the Constitution remains unfettered."7. In our opinion it is altogether unnecessary to go into the question of the applicability of Articles 301 and 304(a) because the decision of the High Court on the question of discrimination is apparently correct. The meaning of "Bardana" as given in the Hindi dictionary is as follows :8. According to this meaning the word "Bardana" does not mean gunny bags alone but it can also mean boxes, wooden packing, etc., in which merchandise had been packed for the purpose of despatch (from one station to another). It has not been suggested that the other kind of Bardana, namely, boxes, wooden packing material, etc., are not being produced or manufactured in the State of Rajasthan. Thus an element of discrimination has been introduced in the exception to the exemption granted by virtue of the notification in the matter of Bardana inasmuch as "Bardana" of the type of gunny bags would be subjected to tax whereas the other kinds of "Bardana" in the shape of gunny bags and other types of Bardana would not be so subjected. No reasonable basis has been suggested for making a separate classification of "Bardana". The learned Judge of the High Court who are likely to be familiar and fully conversant with Hindi which is the official language in the State of Rajasthan had no doubt that the word "Bardana" could not be confined to gunny bags and must be regarded as including other containers of the nature mentioned. This is particularly so because in the notification the word "container" is used.9. On this view the exception to the exemption in the notification which is clearly severable has been and can be rightly struck down as unconstitutional on the ground of discrimination. It has been pointed out on behalf of the respondent that the amount of tax was duly determined (vide the assessment orders copies of which have been shown) and refund should have been ordered as the amounts of tax had been paid for the assessment years in question. It will be for the High Court to hear both sides on this matter and make appropriate directions for refund of such amounts as have been shown to have been paid by the respondent on accounts of tax on "Bardana" for the two assessment years. | 0[ds]7. In our opinion it is altogether unnecessary to go into the question of the applicability of Articles 301 and 304(a) because the decision of the High Court on the question of discrimination is apparently correct.According to this meaning the word "Bardana" does not mean gunny bags alone but it can also mean boxes, wooden packing, etc., in which merchandise had been packed for the purpose of despatch (from one station to another). It has not been suggested that the other kind of Bardana, namely, boxes, wooden packing material, etc., are not being produced or manufactured in the State of Rajasthan. Thus an element of discrimination has been introduced in the exception to the exemption granted by virtue of the notification in the matter of Bardana inasmuch as "Bardana" of the type of gunny bags would be subjected to tax whereas the other kinds of "Bardana" in the shape of gunny bags and other types of Bardana would not be so subjected. No reasonable basis has been suggested for making a separate classification of "Bardana". The learned Judge of the High Court who are likely to be familiar and fully conversant with Hindi which is the official language in the State of Rajasthan had no doubt that the word "Bardana" could not be confined to gunny bags and must be regarded as including other containers of the nature mentioned. This is particularly so because in the notification the word "container" is used.9. On this view the exception to the exemption in the notification which is clearly severable has been and can be rightly struck down as unconstitutional on the ground of discrimination. It has been pointed out on behalf of the respondent that the amount of tax was duly determined (vide the assessment orders copies of which have been shown) and refund should have been ordered as the amounts of tax had been paid for the assessment years in question. It will be for the High Court to hear both sides on this matter and make appropriate directions for refund of such amounts as have been shown to have been paid by the respondent on accounts of tax on "Bardana" for the two assessment years. | 0 | 1,762 | 408 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
was bound to repay the amount which had been collected but it declined to grant any relief on the ground that nothing had been stated in the writ petition as to how much amount of tax had been paid by the respondent and when the same had been paid.5. The principal contention that has been raised by the learned counsel for the State is that the notification had been validly promulgated in exercise of the power conferred under Section 4(2) of the Act. It exempted from tax the sale of "Bardana" which meant gunny bags made from jute and did not mean containers of all kinds made from wood or metal, etc. The exemption, however, contained an exception or a saving clause, namely, that it did not cover the levy of sales tax "on the first point at the hands of an importer in the series of sales in the State." It is submitted that the High Court was in error in holding (a) that "Bardana" meant all kinds of containers and was not confined merely to gunny bags and (b) that there was contravention of Article 301 of the Constitution and Article 304(a) could be of no assistance to the State.6. Articles 301 and 304 of the Constitution may be noticed at this stage. Article 301 appears in the beginning of Part XIII which is headed as "trade, commerce and intercourse within the territory of India". According to this Article subject to the other provisions of this Part, trade, commerce and intercourse throughout the territory of India shall be free. Article 304(a) lays down that notwithstanding anything in Article 301 or Article 303 (with which we are not concerned) the Legislature of a State may by law impose on goods imported from other States or the Union Territories any tax to which similar goods manufactured or produced in that State are subject so as not to discriminate between goods so imported and goods so manufactured or produced. The construction or interpretation which has been commended by the learned counsel for the State of Article 304(a) is that the State has been empowered to impose tax on goods imported from other States or from the Union Territories where goods of the same nature are not being manufactured in the State and if they are being manufactured then the tax had to be levied in such a way that there should be no discrimination between the goods so imported and the goods which are manufactured or produced in the State. It is pointed out that in the present case gunny bags made of jute are imported from outside Rajasthan and admittedly they are not being manufactured in the State. The tax can, therefore, be levied as no question of discrimination can arise. On the other hand, learned counsel for the respondent has called attention to a decision of this Court in Kalyani Stores v. The State of Orissa and Others (1966 (1) SCR 865 ) in which the facts are some-what apposite. There an excise duty had been imposed on "foreign liquor" imported into the State. In the majority judgment this is what was observed at page 872 :"Exercise of power under Article 304(a) can only be effective if the tax or duty is imposed on goods imported from other States and the tax or duty imposed on similar goods manufactured or produced in that State are such that there is no discrimination against imported goods. As no foreign liquor is produced or manufactured in the State of Orissa the power to legislate given by Article 304 is not available and the restriction which is declared on the freedom of trade, commerce or intercourse by Article 301 of the Constitution remains unfettered."7. In our opinion it is altogether unnecessary to go into the question of the applicability of Articles 301 and 304(a) because the decision of the High Court on the question of discrimination is apparently correct. The meaning of "Bardana" as given in the Hindi dictionary is as follows :8. According to this meaning the word "Bardana" does not mean gunny bags alone but it can also mean boxes, wooden packing, etc., in which merchandise had been packed for the purpose of despatch (from one station to another). It has not been suggested that the other kind of Bardana, namely, boxes, wooden packing material, etc., are not being produced or manufactured in the State of Rajasthan. Thus an element of discrimination has been introduced in the exception to the exemption granted by virtue of the notification in the matter of Bardana inasmuch as "Bardana" of the type of gunny bags would be subjected to tax whereas the other kinds of "Bardana" in the shape of gunny bags and other types of Bardana would not be so subjected. No reasonable basis has been suggested for making a separate classification of "Bardana". The learned Judge of the High Court who are likely to be familiar and fully conversant with Hindi which is the official language in the State of Rajasthan had no doubt that the word "Bardana" could not be confined to gunny bags and must be regarded as including other containers of the nature mentioned. This is particularly so because in the notification the word "container" is used.9. On this view the exception to the exemption in the notification which is clearly severable has been and can be rightly struck down as unconstitutional on the ground of discrimination. It has been pointed out on behalf of the respondent that the amount of tax was duly determined (vide the assessment orders copies of which have been shown) and refund should have been ordered as the amounts of tax had been paid for the assessment years in question. It will be for the High Court to hear both sides on this matter and make appropriate directions for refund of such amounts as have been shown to have been paid by the respondent on accounts of tax on "Bardana" for the two assessment years.
### Response:
0
### Explanation:
7. In our opinion it is altogether unnecessary to go into the question of the applicability of Articles 301 and 304(a) because the decision of the High Court on the question of discrimination is apparently correct.According to this meaning the word "Bardana" does not mean gunny bags alone but it can also mean boxes, wooden packing, etc., in which merchandise had been packed for the purpose of despatch (from one station to another). It has not been suggested that the other kind of Bardana, namely, boxes, wooden packing material, etc., are not being produced or manufactured in the State of Rajasthan. Thus an element of discrimination has been introduced in the exception to the exemption granted by virtue of the notification in the matter of Bardana inasmuch as "Bardana" of the type of gunny bags would be subjected to tax whereas the other kinds of "Bardana" in the shape of gunny bags and other types of Bardana would not be so subjected. No reasonable basis has been suggested for making a separate classification of "Bardana". The learned Judge of the High Court who are likely to be familiar and fully conversant with Hindi which is the official language in the State of Rajasthan had no doubt that the word "Bardana" could not be confined to gunny bags and must be regarded as including other containers of the nature mentioned. This is particularly so because in the notification the word "container" is used.9. On this view the exception to the exemption in the notification which is clearly severable has been and can be rightly struck down as unconstitutional on the ground of discrimination. It has been pointed out on behalf of the respondent that the amount of tax was duly determined (vide the assessment orders copies of which have been shown) and refund should have been ordered as the amounts of tax had been paid for the assessment years in question. It will be for the High Court to hear both sides on this matter and make appropriate directions for refund of such amounts as have been shown to have been paid by the respondent on accounts of tax on "Bardana" for the two assessment years.
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Hind Wire Industries Vs. Commissioner Of Income Tax | all that the assessee need do to escape reassessment is to refuse to file a return or refuse to produce taken on behalf of the assessee is correct, the assessee can escape his liability to be reassessed by adopting an obstructive attitude. It is difficult to conceive that such could be the position in law." * 11. The Court while dealing with the provisions of the M.P. General Sales Tax Act, 1958 quoted Section 19 and Rules 33(1) and (2) which read as under : "19. Assessment of turnover escaping assessment. - (1) Whereas an assessment has been made under the Act repealed by section 52 and if for any reasons any sale or purchase of goods chargeable to tax under this Act or any Act repealed by section 52 during any period has been under-assessed or has escaped assessment or assessed at a lower rate or any deduction has been wrongly made therefrom, the Commissioner may, at any time within five calendar years from the date of order of assessment, after giving the dealer a reasonable opportunity of being heard and after making such enquiry as he considers necessary, proceed in such manner as may be prescribed to reassess within a period of two calendar years from the commencement of such proceedings, the tax payable by such dealer and the Commissioner may, where the omission leading to such reassessment is attributable to the dealer, direct that the dealer shall pay, by way of penalty in addition to the amount of tax so assessed, a sum not exceeding that amount :Provided that in the case of an assessment made under any Act repealed by section 52, the period for reassessment escapement or wrong deduction shall be provided in such Act notwithstanding the repeal thereof :Provided further that any reassessment proceedings pending on the date of commencement of the Madhya Pradesh General Sales Tax (Amendment) Act, 1978 (No. 25 of 1978) be completed in accordance with the provisions in force before the date of such commencement and within a period of two calendar years from the date of such commencement." * x x x x x "33. Manner of assessment and reassessment and imposition of penalty. - (1) Where, -(a) a registered dealer has rendered himself liable to tax and penalty under sub-section (1) of section 14A, or(a-i) a dealer has failed to comply with a notice issued under sub-section (1) of section 17, or(b) a registered dealer has failed without sufficient cause to furnish prescribed returns for any period by the prescribed date as required by sub-section (1) of section 17, or(c) a registered dealer has rendered himself liable to best judgment assessment under clauses (a) and (b) of sub-section (4) of section 18, or(d) a dealer has rendered himself liable to best judgment assessment under sub-section (6) or sub-section (7) of section 18, or(e) a dealer being liable to pay tax, has wilfully failed to apply for registration, or(f) the sale or purchase of goods by a dealer during any period has been under-assessed or has escaped assessment or has been assessed at a lower rate or any deduction has been wrongly made therefrom within the meaning of sub-section (1) of section 19, or(g) a dealer has deliberately concealed his turnover of sale or purchase in respect of any goods or has furnished a false return, then in every such case, the assessing authority shall serve on the dealer a notice which shall as far as may be, be in Form XVI specifying the default, escapement or concealment, as the case may be, and calling upon him to show cause by such date, ordinarily not less than 30 days from the date of service of the notice as may be fixed in that behalf, why he should not be assessed or reassessed to tax and/or penalty should not be imposed upon him and directing him to produce on the sale date his books or account and other documents which the assessing authority may require and any evidence which he may wish to produce in support of his objection :Provided that no such notice shall be necessary where the dealer, having appeared before the assessing authority, waives such notice.(2) On the date fixed in the notice issued under sub-rule (1) or in case the notice is waived on such date which may be fixed in this behalf the assessing authority shall after considering the objections raised by the dealer and examining such evidence as may be produced by him and after taking such other evidence as may be available, assess or reassess the dealer to tax and/or impose a penalty or pass any other suitable order." 12. In view of these authorities taking the view that the word any in the expression "order sought to be amended" would mean even the rectified order, we are satisfied that the High Court was wrong in setting aside the decision of the Tribunal. Shri G. Vishwanatha Iyer, learned Senior Counsel cited before us the decisions of the Calcutta, Gujarat, Madras and Orissa High Courts in Bharat Textile Works & Ors. v. Income Tax Officer, Circle-IV, 3-A, (Company) [ 1978 (114) ITR 28 ] Ahmedabad Sarangpur Mills Co. Ltd. v. A. S. Manohar, Income Tax Officer, Circle IV, Ward-A, (Companies), Ahmedabad [ 1976 (102) ITR 712 ], Kothari (Madras) Ltd. v. Agricultural Income Tax Officer [ 1989 (177) ITR 538] and Commissioner of Income Tax v. Kalinga Tubues [ 1991 (187) ITR 595] respectively in support of his contention that the word order used in the expression "order sought to be amended" would mean the original order of the assessment. As against this, Dr. Shankar Ghose, learned Senior Counsel, referred us to the decisions of the Patna and Karnataka High Courts in Bihar State Road Transport Corporation v. Commissioner of Income Tax [ 1986 ITR 162 114 at 130] and Commissioner of Income Tax, Karnataka-II, Bangalore v. Mysore Iron & Steel Ltd. 1986 (157) ITR(at) 531] respectively which decisions have taken the contrary view. | 1[ds]12. In view of these authorities taking the view that the word any in the expression "order sought to be amended" would mean even the rectified order, we are satisfied that the High Court was wrong in setting aside the decision of the Tribunal. Shri G. Vishwanatha Iyer, learned Senior Counsel cited before us the decisions of the Calcutta, Gujarat, Madras and Orissa High Courts in Bharat Textile Works & Ors. v. Income Tax Officer, Circle-IV, 3-A, (Company) [ 1978 (114) ITR 28 ] Ahmedabad Sarangpur Mills Co. Ltd. v. A. S. Manohar, Income Tax Officer, Circle IV, Ward-A, (Companies), Ahmedabad [ 1976 (102) ITR 712 ], Kothari (Madras) Ltd. v. Agricultural Income Tax Officer [ 1989 (177) ITR 538] and Commissioner of Income Tax v. Kalinga Tubues [ 1991 (187) ITR 595] respectively in support of his contention that the word order used in the expression "order sought to be amended" would mean the original order of the assessment. As against this, Dr. Shankar Ghose, learned Senior Counsel, referred us to the decisions of the Patna and Karnataka High Courts in Bihar State Road Transport Corporation v. Commissioner of Income Tax [ 1986 ITR 162 114 at 130] and Commissioner of Income Tax, Karnataka-II, Bangalore v. Mysore Iron & Steel Ltd. 1986 (157) ITR(at) 531] respectively which decisions have taken the contrary view. | 1 | 3,249 | 278 | ### 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:
all that the assessee need do to escape reassessment is to refuse to file a return or refuse to produce taken on behalf of the assessee is correct, the assessee can escape his liability to be reassessed by adopting an obstructive attitude. It is difficult to conceive that such could be the position in law." * 11. The Court while dealing with the provisions of the M.P. General Sales Tax Act, 1958 quoted Section 19 and Rules 33(1) and (2) which read as under : "19. Assessment of turnover escaping assessment. - (1) Whereas an assessment has been made under the Act repealed by section 52 and if for any reasons any sale or purchase of goods chargeable to tax under this Act or any Act repealed by section 52 during any period has been under-assessed or has escaped assessment or assessed at a lower rate or any deduction has been wrongly made therefrom, the Commissioner may, at any time within five calendar years from the date of order of assessment, after giving the dealer a reasonable opportunity of being heard and after making such enquiry as he considers necessary, proceed in such manner as may be prescribed to reassess within a period of two calendar years from the commencement of such proceedings, the tax payable by such dealer and the Commissioner may, where the omission leading to such reassessment is attributable to the dealer, direct that the dealer shall pay, by way of penalty in addition to the amount of tax so assessed, a sum not exceeding that amount :Provided that in the case of an assessment made under any Act repealed by section 52, the period for reassessment escapement or wrong deduction shall be provided in such Act notwithstanding the repeal thereof :Provided further that any reassessment proceedings pending on the date of commencement of the Madhya Pradesh General Sales Tax (Amendment) Act, 1978 (No. 25 of 1978) be completed in accordance with the provisions in force before the date of such commencement and within a period of two calendar years from the date of such commencement." * x x x x x "33. Manner of assessment and reassessment and imposition of penalty. - (1) Where, -(a) a registered dealer has rendered himself liable to tax and penalty under sub-section (1) of section 14A, or(a-i) a dealer has failed to comply with a notice issued under sub-section (1) of section 17, or(b) a registered dealer has failed without sufficient cause to furnish prescribed returns for any period by the prescribed date as required by sub-section (1) of section 17, or(c) a registered dealer has rendered himself liable to best judgment assessment under clauses (a) and (b) of sub-section (4) of section 18, or(d) a dealer has rendered himself liable to best judgment assessment under sub-section (6) or sub-section (7) of section 18, or(e) a dealer being liable to pay tax, has wilfully failed to apply for registration, or(f) the sale or purchase of goods by a dealer during any period has been under-assessed or has escaped assessment or has been assessed at a lower rate or any deduction has been wrongly made therefrom within the meaning of sub-section (1) of section 19, or(g) a dealer has deliberately concealed his turnover of sale or purchase in respect of any goods or has furnished a false return, then in every such case, the assessing authority shall serve on the dealer a notice which shall as far as may be, be in Form XVI specifying the default, escapement or concealment, as the case may be, and calling upon him to show cause by such date, ordinarily not less than 30 days from the date of service of the notice as may be fixed in that behalf, why he should not be assessed or reassessed to tax and/or penalty should not be imposed upon him and directing him to produce on the sale date his books or account and other documents which the assessing authority may require and any evidence which he may wish to produce in support of his objection :Provided that no such notice shall be necessary where the dealer, having appeared before the assessing authority, waives such notice.(2) On the date fixed in the notice issued under sub-rule (1) or in case the notice is waived on such date which may be fixed in this behalf the assessing authority shall after considering the objections raised by the dealer and examining such evidence as may be produced by him and after taking such other evidence as may be available, assess or reassess the dealer to tax and/or impose a penalty or pass any other suitable order." 12. In view of these authorities taking the view that the word any in the expression "order sought to be amended" would mean even the rectified order, we are satisfied that the High Court was wrong in setting aside the decision of the Tribunal. Shri G. Vishwanatha Iyer, learned Senior Counsel cited before us the decisions of the Calcutta, Gujarat, Madras and Orissa High Courts in Bharat Textile Works & Ors. v. Income Tax Officer, Circle-IV, 3-A, (Company) [ 1978 (114) ITR 28 ] Ahmedabad Sarangpur Mills Co. Ltd. v. A. S. Manohar, Income Tax Officer, Circle IV, Ward-A, (Companies), Ahmedabad [ 1976 (102) ITR 712 ], Kothari (Madras) Ltd. v. Agricultural Income Tax Officer [ 1989 (177) ITR 538] and Commissioner of Income Tax v. Kalinga Tubues [ 1991 (187) ITR 595] respectively in support of his contention that the word order used in the expression "order sought to be amended" would mean the original order of the assessment. As against this, Dr. Shankar Ghose, learned Senior Counsel, referred us to the decisions of the Patna and Karnataka High Courts in Bihar State Road Transport Corporation v. Commissioner of Income Tax [ 1986 ITR 162 114 at 130] and Commissioner of Income Tax, Karnataka-II, Bangalore v. Mysore Iron & Steel Ltd. 1986 (157) ITR(at) 531] respectively which decisions have taken the contrary view.
### Response:
1
### Explanation:
12. In view of these authorities taking the view that the word any in the expression "order sought to be amended" would mean even the rectified order, we are satisfied that the High Court was wrong in setting aside the decision of the Tribunal. Shri G. Vishwanatha Iyer, learned Senior Counsel cited before us the decisions of the Calcutta, Gujarat, Madras and Orissa High Courts in Bharat Textile Works & Ors. v. Income Tax Officer, Circle-IV, 3-A, (Company) [ 1978 (114) ITR 28 ] Ahmedabad Sarangpur Mills Co. Ltd. v. A. S. Manohar, Income Tax Officer, Circle IV, Ward-A, (Companies), Ahmedabad [ 1976 (102) ITR 712 ], Kothari (Madras) Ltd. v. Agricultural Income Tax Officer [ 1989 (177) ITR 538] and Commissioner of Income Tax v. Kalinga Tubues [ 1991 (187) ITR 595] respectively in support of his contention that the word order used in the expression "order sought to be amended" would mean the original order of the assessment. As against this, Dr. Shankar Ghose, learned Senior Counsel, referred us to the decisions of the Patna and Karnataka High Courts in Bihar State Road Transport Corporation v. Commissioner of Income Tax [ 1986 ITR 162 114 at 130] and Commissioner of Income Tax, Karnataka-II, Bangalore v. Mysore Iron & Steel Ltd. 1986 (157) ITR(at) 531] respectively which decisions have taken the contrary view.
|
Securities & Exchange Board Of India Vs. M/S.Prebon Yamane (I) Ltd | WDM segment of Oracle Stocks & Shares Ltd. to Prebon Yamane India Ltd. as a continuation of the original WDM membership that was granted to M/s Oracle Stocks & Shares Ltd. The view of the NSE in this regard, confirming that both the memberships are concomitant, is enclosed herewith.In view of the facts mentioned above and the NSE’s view in this regard, we would request you to give the status of fee continuity to the composite membership taken by M/s Oracle and PYIndia. In other words, if Oracle has paid turnover fees from 1994, and the broking business has commenced from 1994, any fees be levied in either Oracle and/or PYIndia for the balance period, as a composite entity.” 10. Learned Senior Counsel for the Respondent has contended that transfer from one juristic person to another is not the appropriate test and that since the Regulations employ the term “entity”, it is necessary to determine whether the entities are essentially the same. Senior Counsel has submitted that since Oracle, who was an existing member, had a 50% stake in the Respondent, in effect the Respondent was another manifestation or avatar of Oracle. Further, the Appellant had conducted inspections of the Respondent but had not raised any issue or recorded any objections at that time. Reliance has been placed on the letter dated 30.1.2002 issued by the NSE to the Respondent, which had stated that as per the policies of the NSE, segmental surrender of trading membership was not permitted, and therefore the assignment of WDM segment to the Respondent has been treated as a continuation of the WDM membership that was originally granted to Oracle. It has been strenuously contended that the Appellant had a change of mind and heart consequent upon the issuance of its Circular dated 28.3.2002 which stated that in case a broker had more than one registration certificate from any stock exchange, he would be required to pay fees as per the Regulations for each and every certificate that he held. The Circular further stated that in the event of a broker holding only one Registration Certificate but more than one card on any Exchange, registration fee would be payable on the registration certificate and not on the number of cards held by the broker, and the broker’s turnover would be reckoned as the aggregate turnover of all cards. It appears that this provision had been relied upon in the Judgment dated 3.6.2010 in WP (C) No.17349/2004, which was struck down by the Delhi High Court in Association for Welfare of Delhi Stock Brokers vs. Union of India, and an Appeal thereagainst is pending before this Court. However, we find that issue which were in contemplation in those proceeding are dissimilar to what we have in hand.11 Reliance has also been placed on the affidavit filed by the Appellant before the SAT. Therein the Appellant admitted that the Respondent had applied for fee continuity vide letter dated 4.2.2002 which had enclosed the letter of the NSE confirming that both the memberships had been considered concomitant by it. The Appellant, based on the same, approved in the file that the two cards could be treated as composite for all practical purposes and the turnover of the two cards may be taken together for the purpose of ad-valorem fee. We have already noted that Sethi Auto Service Station enunciates that file notings cannot be relied upon with the intent of binding the concerned Authority or Department. 12 Counsel for the Appellant has pointed out that the Respondent has not paid fee as per Schedule III, Clause 1(c). The Respondent only paid the basic fee indicating that its turnover for the financial year was not beyond Rs.1 Crore. However, the fixed basic fee of Rs.5000 was paid by the Respondent in 1999, 2000 and 2001. Had the Respondent indeed believed that it had been granted continuity, then as per Clause 1(c) of Regulation 10, the Respondent would have paid Rs.5000 only once, for the block of 5 years. Furthermore, to prove that the Respondent was under no misconception with regard to it not having been granted “fee continuity”, reference was made to two letters dated 4.2.2002 and 18.9.2003. Both these letters were applications seeking grant of fee continuity. Thus, the Respondent was never under an understanding that it had been granted fee continuity.13. After considering the submissions of the learned Senior Counsel for both parties and appreciating the facts of the case, it is evident to us that as per Clause 4 of Schedule III, the Respondent was not an ‘entity’ as envisaged in the Regulations as would be entitled to “fee continuity” or exemption from payment of fees. The Regulation 4 clearly refers to a newly formed entity through conversion from either a sole proprietorship or a partnership to a limited Company, which alone has been bestowed the benefit of continuity. Given that the Respondent is barred by the provisions, the Appellant’s internal file notings are of no consequence and the Appellant is not estopped from coming to a contrary conclusion. The Respondent’s argument that the Appellant experienced a change of heart after the issuance of the Circular dated 28.3.2002 is untenable, because if that was indeed what the Respondent believed, it would not have written a letter requesting fee continuity on 4.2.2002, a date prior to the issuance of the circular dated 28.3.2002. Thus, the Respondent has failed to prove that it believed it was granted fee continuity, in light of its letter to the Appellant requesting the same. Further, it appears to us that the Respondent was an entity quite distinct from Oracle, with the consequence that it would be bound to pay the fee in accordance with Schedule III, Clause (a) or (b) as the case may be, and would not be entitled to claim the advantage of Clause (c). In fact, this is the very understanding of the Respondent since fees were deposited by them under Clause (a) in sharp contradistinction of Clause (c). | 1[ds]13. After considering the submissions of the learned Senior Counsel for both parties and appreciating the facts of the case, it is evident to us that as per Clause 4 of Schedule III, the Respondent was not anas envisaged in the Regulations as would be entitled toor exemption from payment of fees. The Regulation 4 clearly refers to a newly formed entity through conversion from either a sole proprietorship or a partnership to a limited Company, which alone has been bestowed the benefit of continuity. Given that the Respondent is barred by the provisions, theinternal file notings are of no consequence and the Appellant is not estopped from coming to a contrary conclusion. Theargument that the Appellant experienced a change of heart after the issuance of the Circular dated 28.3.2002 is untenable, because if that was indeed what the Respondent believed, it would not have written a letter requesting fee continuity on 4.2.2002, a date prior to the issuance of the circular dated 28.3.2002. Thus, the Respondent has failed to prove that it believed it was granted fee continuity, in light of its letter to the Appellant requesting the same. Further, it appears to us that the Respondent was an entity quite distinct from Oracle, with the consequence that it would be bound to pay the fee in accordance with Schedule III, Clause (a) or (b) as the case may be, and would not be entitled to claim the advantage of Clause (c). In fact, this is the very understanding of the Respondent since fees were deposited by them under Clause (a) in sharp contradistinction of Clause (c). | 1 | 4,416 | 304 | ### 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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WDM segment of Oracle Stocks & Shares Ltd. to Prebon Yamane India Ltd. as a continuation of the original WDM membership that was granted to M/s Oracle Stocks & Shares Ltd. The view of the NSE in this regard, confirming that both the memberships are concomitant, is enclosed herewith.In view of the facts mentioned above and the NSE’s view in this regard, we would request you to give the status of fee continuity to the composite membership taken by M/s Oracle and PYIndia. In other words, if Oracle has paid turnover fees from 1994, and the broking business has commenced from 1994, any fees be levied in either Oracle and/or PYIndia for the balance period, as a composite entity.” 10. Learned Senior Counsel for the Respondent has contended that transfer from one juristic person to another is not the appropriate test and that since the Regulations employ the term “entity”, it is necessary to determine whether the entities are essentially the same. Senior Counsel has submitted that since Oracle, who was an existing member, had a 50% stake in the Respondent, in effect the Respondent was another manifestation or avatar of Oracle. Further, the Appellant had conducted inspections of the Respondent but had not raised any issue or recorded any objections at that time. Reliance has been placed on the letter dated 30.1.2002 issued by the NSE to the Respondent, which had stated that as per the policies of the NSE, segmental surrender of trading membership was not permitted, and therefore the assignment of WDM segment to the Respondent has been treated as a continuation of the WDM membership that was originally granted to Oracle. It has been strenuously contended that the Appellant had a change of mind and heart consequent upon the issuance of its Circular dated 28.3.2002 which stated that in case a broker had more than one registration certificate from any stock exchange, he would be required to pay fees as per the Regulations for each and every certificate that he held. The Circular further stated that in the event of a broker holding only one Registration Certificate but more than one card on any Exchange, registration fee would be payable on the registration certificate and not on the number of cards held by the broker, and the broker’s turnover would be reckoned as the aggregate turnover of all cards. It appears that this provision had been relied upon in the Judgment dated 3.6.2010 in WP (C) No.17349/2004, which was struck down by the Delhi High Court in Association for Welfare of Delhi Stock Brokers vs. Union of India, and an Appeal thereagainst is pending before this Court. However, we find that issue which were in contemplation in those proceeding are dissimilar to what we have in hand.11 Reliance has also been placed on the affidavit filed by the Appellant before the SAT. Therein the Appellant admitted that the Respondent had applied for fee continuity vide letter dated 4.2.2002 which had enclosed the letter of the NSE confirming that both the memberships had been considered concomitant by it. The Appellant, based on the same, approved in the file that the two cards could be treated as composite for all practical purposes and the turnover of the two cards may be taken together for the purpose of ad-valorem fee. We have already noted that Sethi Auto Service Station enunciates that file notings cannot be relied upon with the intent of binding the concerned Authority or Department. 12 Counsel for the Appellant has pointed out that the Respondent has not paid fee as per Schedule III, Clause 1(c). The Respondent only paid the basic fee indicating that its turnover for the financial year was not beyond Rs.1 Crore. However, the fixed basic fee of Rs.5000 was paid by the Respondent in 1999, 2000 and 2001. Had the Respondent indeed believed that it had been granted continuity, then as per Clause 1(c) of Regulation 10, the Respondent would have paid Rs.5000 only once, for the block of 5 years. Furthermore, to prove that the Respondent was under no misconception with regard to it not having been granted “fee continuity”, reference was made to two letters dated 4.2.2002 and 18.9.2003. Both these letters were applications seeking grant of fee continuity. Thus, the Respondent was never under an understanding that it had been granted fee continuity.13. After considering the submissions of the learned Senior Counsel for both parties and appreciating the facts of the case, it is evident to us that as per Clause 4 of Schedule III, the Respondent was not an ‘entity’ as envisaged in the Regulations as would be entitled to “fee continuity” or exemption from payment of fees. The Regulation 4 clearly refers to a newly formed entity through conversion from either a sole proprietorship or a partnership to a limited Company, which alone has been bestowed the benefit of continuity. Given that the Respondent is barred by the provisions, the Appellant’s internal file notings are of no consequence and the Appellant is not estopped from coming to a contrary conclusion. The Respondent’s argument that the Appellant experienced a change of heart after the issuance of the Circular dated 28.3.2002 is untenable, because if that was indeed what the Respondent believed, it would not have written a letter requesting fee continuity on 4.2.2002, a date prior to the issuance of the circular dated 28.3.2002. Thus, the Respondent has failed to prove that it believed it was granted fee continuity, in light of its letter to the Appellant requesting the same. Further, it appears to us that the Respondent was an entity quite distinct from Oracle, with the consequence that it would be bound to pay the fee in accordance with Schedule III, Clause (a) or (b) as the case may be, and would not be entitled to claim the advantage of Clause (c). In fact, this is the very understanding of the Respondent since fees were deposited by them under Clause (a) in sharp contradistinction of Clause (c).
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13. After considering the submissions of the learned Senior Counsel for both parties and appreciating the facts of the case, it is evident to us that as per Clause 4 of Schedule III, the Respondent was not anas envisaged in the Regulations as would be entitled toor exemption from payment of fees. The Regulation 4 clearly refers to a newly formed entity through conversion from either a sole proprietorship or a partnership to a limited Company, which alone has been bestowed the benefit of continuity. Given that the Respondent is barred by the provisions, theinternal file notings are of no consequence and the Appellant is not estopped from coming to a contrary conclusion. Theargument that the Appellant experienced a change of heart after the issuance of the Circular dated 28.3.2002 is untenable, because if that was indeed what the Respondent believed, it would not have written a letter requesting fee continuity on 4.2.2002, a date prior to the issuance of the circular dated 28.3.2002. Thus, the Respondent has failed to prove that it believed it was granted fee continuity, in light of its letter to the Appellant requesting the same. Further, it appears to us that the Respondent was an entity quite distinct from Oracle, with the consequence that it would be bound to pay the fee in accordance with Schedule III, Clause (a) or (b) as the case may be, and would not be entitled to claim the advantage of Clause (c). In fact, this is the very understanding of the Respondent since fees were deposited by them under Clause (a) in sharp contradistinction of Clause (c).
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M/S.Pepsi Foods Vs. Special Judicial Magistrate | High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial. It was submitted before us on behalf of the State that in case we find that the High Court failed to exercise its jurisdiction the matter should be remanded back to it to consider if the complaint and the evidence on record did not make out any case against the appellants. If, however, we refer to the impugned judgment of the High Court it has come to the conclusion, though without referring to any material on record, that "in the present case it cannot be said at this stage that the allegations in the complaint are so absurd and inherently improbable on the basis of which no prudent man can ever reach a just conclusion that there exists no sufficient ground for proceedings against the accused." We do not think that the High Court was correct in coming to such a conclusion and in coming to that it has also foreclosed the matter for the Magistrate as well, as the Magistrate will not give any different conclusion on an application filed under Section 245 of the Code. The High Court says that the appellants could very well appeal before the Court and move an application under Section 245(2) of the Code and that the magistrate could discharge them if he found the charge to be groundless and at the same time it has itself returned the finding what there are sufficient grounds for proceeding against the appellants. If we now refer to the facts of the case before us it is clear to us that not only that allegation against the appellants make out any case for an offence under Section 7 of the Act and also that there is no basis for the complainant to make such allegation. The allegations in the complaint merely show that the appellants have given their brand name to "Residency Foods and Beverages Ltd." for bottling the beverage "Lehar Pepsi". The complaint does not show what is the role of the appellants in the manufacture of the beverage which is said to be adulterated. The only allegation is that the appellants are the manufacturer of bottle. There is no averment as to how the complainant could say so and also if the appellants manufactured the alleged bottle or its contents. His sole information is from A.K. Jain who is impleaded as accused No. 3. The preliminary evidence on which the 1st respondent relied in issuing summon to the appellants also does not show as to how it could be said that the appellants are manufacturers of either the bottle or the beverage or both. There is another aspect of the matter. The Central Government in the exercise of their powers under Section 3 of the Essential Commodities Act, 1955 made the Fruit Products Order, 1955 (for short, the "Fruit Order"). It is not disputed that the beverage in the question is a "fruit product" within the meaning of clause (2)(b) of the Fruit Order and that for the manufacture thereof certain licence is required. The Fruit Order defines the manufacturer and also sets out as to what the manufacturer is required to do in regard to the packaging, marking and labelling of containers of fruit products. One of such requirement is that when a bottle is used in packing any fruit products, it shall be so sealed that it cannot be opened without destroying the licence number and the special identification mark of the manufacturer to be displayed on the top or neck of the bottle. The licence number of manufacturer shall also be exhibited prominently on the side label on such bottle (clause (8)(1)(b). Admittedly, the name of the first appellant is not mentioned as a manufacturer on the top cap of the bottle. It is not necessary to refer in detail to other requirements of the Fruit Order and the consequences of infringement of the Order and to the penalty to which the manufacturer would be exposed under the provisions of the Essential Commodities Act, 1955. We may, however, note that in The Hamdard Dawakhana (Wakf), Delhi & another v. The Union of India & others, AIR 1965 SC 1167 : 1965(2) SCR 192, an argument was raised that the Fruit Order was invalid because its provision indicated that it was an Order which could have been appropriately issued under the Prevention of Food Adulteration Act, 1954. This Court negatived this plea and said that the Fruit Order was validly issued under the Essential Commodities Act. What we find in the present case is that there was nothing on record to show if the appellants held the licence for the manufacture of the offending beverage and if, as noted above, the first appellant was the manufacturer thereof.28. It is no comfortable thought for the appellants to be told that they could appear before the court which is at a far off place in the Ghazipur in the State of Uttar Pradesh, seek their release on bail and then to either move an application under Section 245(2) of the Code or to face trial when the complaint and the preliminary evidence recorded makes out no case against them. It is certainly one of those cases where there is an abuse of the process of the law and the courts and the High Court should not have shied away in exercising its jurisdiction. Provisions of Articles 226 and 227 of the Constitution and Section 482 of the Code are devised to advance justice and not to frustrate it. In our view High Court should not have adopted such a rigid approach which certainly has led to miscarriage of justice in the case. Power of judicial review is discretionary but this was a case where the High Court should have exercised it. | 1[ds]24. Nomenclature under which petition is filed is not quite relevant and that does not debar the court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. If in a case like the present one the court finds that the appellants could not invoke its jurisdiction under Article 226, the court can certainly treat the petition one under Article 227 or Section 482 of the Code. It may not, however, be lost sight of that provisions exist in the Code of revision and appeal but some time for immediate relief Section 482 of the Code or Article 227 may have to be resorted to for correcting some grave errors that might be committed by the subordinate courts. The present petition though filed in the High Court as one Article 226 and 227 could well be treated under Article 227 of the Constitution.25. We have not been able to understand as to why it was necessary for the appellants to implead the first respondent as a party to the proceedings. There are no allegations of personal bias against the Presiding Officer. A court is not to be equated with a tribunal exercising quasi judicial powers. We would, therefore, strike out the name of the 1st respondent from the array of the parties.26. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and that would be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.27. No doubt the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial. It was submitted before us on behalf of the State that in case we find that the High Court failed to exercise its jurisdiction the matter should be remanded back to it to consider if the complaint and the evidence on record did not make out any case against the appellants. If, however, we refer to the impugned judgment of the High Court it has come to the conclusion, though without referring to any material on record, that "in the present case it cannot be said at this stage that the allegations in the complaint are so absurd and inherently improbable on the basis of which no prudent man can ever reach a just conclusion that there exists no sufficient ground for proceedings against the accused." We do not think that the High Court was correct in coming to such a conclusion and in coming to that it has also foreclosed the matter for the Magistrate as well, as the Magistrate will not give any different conclusion on an application filed under Section 245 of the Code. The High Court says that the appellants could very well appeal before the Court and move an application under Section 245(2) of the Code and that the magistrate could discharge them if he found the charge to be groundless and at the same time it has itself returned the finding what there are sufficient grounds for proceeding against the appellants. If we now refer to the facts of the case before us it is clear to us that not only that allegation against the appellants make out any case for an offence under Section 7 of the Act and also that there is no basis for the complainant to make such allegation. The allegations in the complaint merely show that the appellants have given their brand name to "Residency Foods and Beverages Ltd." for bottling the beverage "Lehar Pepsi". The complaint does not show what is the role of the appellants in the manufacture of the beverage which is said to be adulterated. The only allegation is that the appellants are the manufacturer of bottle. There is no averment as to how the complainant could say so and also if the appellants manufactured the alleged bottle or its contents. His sole information is from A.K. Jain who is impleaded as accused No. 3. The preliminary evidence on which the 1st respondent relied in issuing summon to the appellants also does not show as to how it could be said that the appellants are manufacturers of either the bottle or the beverage or both. There is another aspect of the matter. The Central Government in the exercise of their powers under Section 3 ofthe Essential Commodities Act, 1955 made the Fruit Products Order, 1955 (for short, the "Fruit Order"). It is not disputed that the beverage in the question is a "fruit product" within the meaning of clause (2)(b) of the Fruit Order and that for the manufacture thereof certain licence is required. The Fruit Order defines the manufacturer and also sets out as to what the manufacturer is required to do in regard to the packaging, marking and labelling of containers of fruit products. One of such requirement is that when a bottle is used in packing any fruit products, it shall be so sealed that it cannot be opened without destroying the licence number and the special identification mark of the manufacturer to be displayed on the top or neck of the bottle. The licence number of manufacturer shall also be exhibited prominently on the side label on such bottle (clause (8)(1)(b). Admittedly, the name of the first appellant is not mentioned as a manufacturer on the top cap of the bottle. It is not necessary to refer in detail to other requirements of the Fruit Order and the consequences of infringement of the Order and to the penalty to which the manufacturer would be exposed under the provisions ofthe Essential Commodities Act, 1955. We may, however, note that in The Hamdard Dawakhana (Wakf), Delhi & another v. The Union of India & others, AIR 1965 SC 1167 : 1965(2) SCR 192, an argument was raised that the Fruit Order was invalid because its provision indicated that it was an Order which could have been appropriately issued underthe Prevention of Food Adulteration Act,This Court negatived this plea and said that the Fruit Order was validly issued under the Essential Commodities Act. What we find in the present case is that there was nothing on record to show if the appellants held the licence for the manufacture of the offending beverage and if, as noted above, the first appellant was the manufacturer thereof.28. It is no comfortable thought for the appellants to be told that they could appear before the court which is at a far off place in the Ghazipur in the State of Uttar Pradesh, seek their release on bail and then to either move an application under Section 245(2) of the Code or to face trial when the complaint and the preliminary evidence recorded makes out no case against them. It is certainly one of those cases where there is an abuse of the process of the law and the courts and the High Court should not have shied away in exercising its jurisdiction. Provisions of Articles 226 and 227 of the Constitution and Section 482 of the Code are devised to advance justice and not to frustrate it. In our view High Court should not have adopted such a rigid approach which certainly has led to miscarriage of justice in the case. Power of judicial review is discretionary but this was a case where the High Court should have exercised it. | 1 | 6,835 | 1,558 | ### 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:
High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial. It was submitted before us on behalf of the State that in case we find that the High Court failed to exercise its jurisdiction the matter should be remanded back to it to consider if the complaint and the evidence on record did not make out any case against the appellants. If, however, we refer to the impugned judgment of the High Court it has come to the conclusion, though without referring to any material on record, that "in the present case it cannot be said at this stage that the allegations in the complaint are so absurd and inherently improbable on the basis of which no prudent man can ever reach a just conclusion that there exists no sufficient ground for proceedings against the accused." We do not think that the High Court was correct in coming to such a conclusion and in coming to that it has also foreclosed the matter for the Magistrate as well, as the Magistrate will not give any different conclusion on an application filed under Section 245 of the Code. The High Court says that the appellants could very well appeal before the Court and move an application under Section 245(2) of the Code and that the magistrate could discharge them if he found the charge to be groundless and at the same time it has itself returned the finding what there are sufficient grounds for proceeding against the appellants. If we now refer to the facts of the case before us it is clear to us that not only that allegation against the appellants make out any case for an offence under Section 7 of the Act and also that there is no basis for the complainant to make such allegation. The allegations in the complaint merely show that the appellants have given their brand name to "Residency Foods and Beverages Ltd." for bottling the beverage "Lehar Pepsi". The complaint does not show what is the role of the appellants in the manufacture of the beverage which is said to be adulterated. The only allegation is that the appellants are the manufacturer of bottle. There is no averment as to how the complainant could say so and also if the appellants manufactured the alleged bottle or its contents. His sole information is from A.K. Jain who is impleaded as accused No. 3. The preliminary evidence on which the 1st respondent relied in issuing summon to the appellants also does not show as to how it could be said that the appellants are manufacturers of either the bottle or the beverage or both. There is another aspect of the matter. The Central Government in the exercise of their powers under Section 3 of the Essential Commodities Act, 1955 made the Fruit Products Order, 1955 (for short, the "Fruit Order"). It is not disputed that the beverage in the question is a "fruit product" within the meaning of clause (2)(b) of the Fruit Order and that for the manufacture thereof certain licence is required. The Fruit Order defines the manufacturer and also sets out as to what the manufacturer is required to do in regard to the packaging, marking and labelling of containers of fruit products. One of such requirement is that when a bottle is used in packing any fruit products, it shall be so sealed that it cannot be opened without destroying the licence number and the special identification mark of the manufacturer to be displayed on the top or neck of the bottle. The licence number of manufacturer shall also be exhibited prominently on the side label on such bottle (clause (8)(1)(b). Admittedly, the name of the first appellant is not mentioned as a manufacturer on the top cap of the bottle. It is not necessary to refer in detail to other requirements of the Fruit Order and the consequences of infringement of the Order and to the penalty to which the manufacturer would be exposed under the provisions of the Essential Commodities Act, 1955. We may, however, note that in The Hamdard Dawakhana (Wakf), Delhi & another v. The Union of India & others, AIR 1965 SC 1167 : 1965(2) SCR 192, an argument was raised that the Fruit Order was invalid because its provision indicated that it was an Order which could have been appropriately issued under the Prevention of Food Adulteration Act, 1954. This Court negatived this plea and said that the Fruit Order was validly issued under the Essential Commodities Act. What we find in the present case is that there was nothing on record to show if the appellants held the licence for the manufacture of the offending beverage and if, as noted above, the first appellant was the manufacturer thereof.28. It is no comfortable thought for the appellants to be told that they could appear before the court which is at a far off place in the Ghazipur in the State of Uttar Pradesh, seek their release on bail and then to either move an application under Section 245(2) of the Code or to face trial when the complaint and the preliminary evidence recorded makes out no case against them. It is certainly one of those cases where there is an abuse of the process of the law and the courts and the High Court should not have shied away in exercising its jurisdiction. Provisions of Articles 226 and 227 of the Constitution and Section 482 of the Code are devised to advance justice and not to frustrate it. In our view High Court should not have adopted such a rigid approach which certainly has led to miscarriage of justice in the case. Power of judicial review is discretionary but this was a case where the High Court should have exercised it.
### Response:
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### Explanation:
the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial. It was submitted before us on behalf of the State that in case we find that the High Court failed to exercise its jurisdiction the matter should be remanded back to it to consider if the complaint and the evidence on record did not make out any case against the appellants. If, however, we refer to the impugned judgment of the High Court it has come to the conclusion, though without referring to any material on record, that "in the present case it cannot be said at this stage that the allegations in the complaint are so absurd and inherently improbable on the basis of which no prudent man can ever reach a just conclusion that there exists no sufficient ground for proceedings against the accused." We do not think that the High Court was correct in coming to such a conclusion and in coming to that it has also foreclosed the matter for the Magistrate as well, as the Magistrate will not give any different conclusion on an application filed under Section 245 of the Code. The High Court says that the appellants could very well appeal before the Court and move an application under Section 245(2) of the Code and that the magistrate could discharge them if he found the charge to be groundless and at the same time it has itself returned the finding what there are sufficient grounds for proceeding against the appellants. If we now refer to the facts of the case before us it is clear to us that not only that allegation against the appellants make out any case for an offence under Section 7 of the Act and also that there is no basis for the complainant to make such allegation. The allegations in the complaint merely show that the appellants have given their brand name to "Residency Foods and Beverages Ltd." for bottling the beverage "Lehar Pepsi". The complaint does not show what is the role of the appellants in the manufacture of the beverage which is said to be adulterated. The only allegation is that the appellants are the manufacturer of bottle. There is no averment as to how the complainant could say so and also if the appellants manufactured the alleged bottle or its contents. His sole information is from A.K. Jain who is impleaded as accused No. 3. The preliminary evidence on which the 1st respondent relied in issuing summon to the appellants also does not show as to how it could be said that the appellants are manufacturers of either the bottle or the beverage or both. There is another aspect of the matter. The Central Government in the exercise of their powers under Section 3 ofthe Essential Commodities Act, 1955 made the Fruit Products Order, 1955 (for short, the "Fruit Order"). It is not disputed that the beverage in the question is a "fruit product" within the meaning of clause (2)(b) of the Fruit Order and that for the manufacture thereof certain licence is required. The Fruit Order defines the manufacturer and also sets out as to what the manufacturer is required to do in regard to the packaging, marking and labelling of containers of fruit products. One of such requirement is that when a bottle is used in packing any fruit products, it shall be so sealed that it cannot be opened without destroying the licence number and the special identification mark of the manufacturer to be displayed on the top or neck of the bottle. The licence number of manufacturer shall also be exhibited prominently on the side label on such bottle (clause (8)(1)(b). Admittedly, the name of the first appellant is not mentioned as a manufacturer on the top cap of the bottle. It is not necessary to refer in detail to other requirements of the Fruit Order and the consequences of infringement of the Order and to the penalty to which the manufacturer would be exposed under the provisions ofthe Essential Commodities Act, 1955. We may, however, note that in The Hamdard Dawakhana (Wakf), Delhi & another v. The Union of India & others, AIR 1965 SC 1167 : 1965(2) SCR 192, an argument was raised that the Fruit Order was invalid because its provision indicated that it was an Order which could have been appropriately issued underthe Prevention of Food Adulteration Act,This Court negatived this plea and said that the Fruit Order was validly issued under the Essential Commodities Act. What we find in the present case is that there was nothing on record to show if the appellants held the licence for the manufacture of the offending beverage and if, as noted above, the first appellant was the manufacturer thereof.28. It is no comfortable thought for the appellants to be told that they could appear before the court which is at a far off place in the Ghazipur in the State of Uttar Pradesh, seek their release on bail and then to either move an application under Section 245(2) of the Code or to face trial when the complaint and the preliminary evidence recorded makes out no case against them. It is certainly one of those cases where there is an abuse of the process of the law and the courts and the High Court should not have shied away in exercising its jurisdiction. Provisions of Articles 226 and 227 of the Constitution and Section 482 of the Code are devised to advance justice and not to frustrate it. In our view High Court should not have adopted such a rigid approach which certainly has led to miscarriage of justice in the case. Power of judicial review is discretionary but this was a case where the High Court should have exercised it.
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WAQF BOARD, RAJASTHAN Vs. JINDAL SAW LIMITED & ORS | basis of which permission to lease was granted, Survey No. 931 over which the said structure is found in the survey report was not part of the lease. Survey No. 6731 measuring 158 Bigha 12 Biswa was the one over which the writ petitioner was granted permission to do the mining work but there is no document or report to show that any part of Survey No. 6731 was ever declared to be a religious structure within the meaning of waqf as defined under the Act. The learned counsel for the parties furnished the photocopies of the original documents on the basis of which reliance was placed by the appellant that the Tiranga Qalandari Masjid in Village Pur is a mosque and, therefore, no mining activity can be undertaken. 13. The first document so produced is undated but the subject shows that it is in respect of Auqaf to be registered in Ajmer and Sunel Regions of the State till 5.1.1959 and in the rest of Rajasthan by 1.4.1955. A reading of the said report shows that it does not have any survey number, though the value of waqf was assessed at Rs.900/- and the purpose of use was for Namaaz. Thereafter, a notification was published on 23.9.1965 declaring Qalandari Masjid of Tiranga as the waqf property as the nature and object are pious, religious and for offering prayers. The appellant has produced an extract from its register pointing out that 12 x 9 measuring 108 is Tiranga Ki Qalandari Masjid. Another document produced by the appellant is the survey report dated 15.1.2002 to the effect that the Qalandari Masjid on Tiranga Hill is situated in Survey No. 931. 14. With this factual background, Mr. Ranjit Kumar and Mr. C.S. Vaidyanathan have argued that the claim of the appellant is wholly untenable as at no point of time, any revenue record shows any religious structure on the land comprising in Survey No. 6731. In fact, the religious structure is said to be in existence over Survey No. 931. Still further, the record of the appellant shows that the area of the religious structure is 108 feet whereas in the second survey report, the area is shown to be 525 feet. Hence, there is a discrepancy about the area over which the religious structure is in existence. 15. It has also been contended that a perusal of the photographs shows that the structure is totally dilapidated without any roof and in fact a wall and some broken derelict platform exist at the spot. The area is surrounded by vegetation and there is also nothing to suggest that the structure was ever used for offering prayers (Namaaz) as neither the area is accessible, nor there is any facility of Wazoo (The practice of ritual purification i.e., to wash face, hands, arms and feet before daily prayer), which is stated to be an essential step before offering prayer. The experts from the Archaeological Department have reported that the structure has no historical or archaeological importance. It is further contended that the Tehsildar, before the possession was delivered, had given an extensive report of each of the structure existing on the land proposed to be given. The lands for graveyard and other religious structures have been excluded from the lease. Therefore, the act of identification carried out years before raising of the dispute done by the revenue officials in the course of their official duties carry presumption of correctness. It shows that the structure had no religious value. 16. We have heard learned counsel for the parties at length and find no merit in the appeals. The Qalandari Masjid on Tiranga Hill as per the document produced by the appellant is located on Survey No. 931. There is no assertion that the Survey No. 931 is changed as Survey No. 6731. In fact, the old number of Survey No. 6731 is 9646 or may be some other number but positively not the survey number 931. Therefore, the claim of the appellant is on a different portion of land and not the land leased to the writ petitioner. There is discrepancy in the total area of the Masjid in the two documents, i.e., the extract produced by the appellant from the register and the second survey report. The letter dated 17.4.2012 by the Anjuman Committee is based upon hearsay and is not of any binding value. 17. Still further, there is no evidence at any given point of time that the structure was being used as a mosque. There is no allegation or proof of either of dedication or user or grant which can be termed as a waqf within the meaning of the Act. Section 3 (r) of the Act reads thus:- [(r) waqf means the permanent dedication by any person, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes— (i) a waqf by user but such waqf shall not cease to be a waqf by reason only of the user having ceased irrespective of the period of such cesser; (ii) a Shamlat Patti, Shamlat Deh, Jumla Malkkan or by any other name entered in a revenue record; (iii) xxx xxx 18. The report of the experts is relevant only to the extent that the structure has no archaeological or historical importance. In the absence of any proof of dedication or user, a dilapidated wall or a platform cannot be conferred a status of a religious place for the purpose of offering prayers/Namaaz. 19. The stand of the State Government that they have identified it to be a religious structure comprising in Khasra No. 6731 has not been produced on record. There is nothing on record that such decision if any, was arrived at after associating the writ petitioner. It is always open to the State as lessor to exercise the powers conferred in it by the lease deed after complying the principles of natural justice and on good and sufficient grounds. | 0[ds]16. We have heard learned counsel for the parties at length and find no merit in the appeals. The Qalandari Masjid on Tiranga Hill as per the document produced by the appellant is located on Survey No. 931. There is no assertion that the Survey No. 931 is changed as Survey No. 6731. In fact, the old number of Survey No. 6731 is 9646 or may be some other number but positively not the survey number 931. Therefore, the claim of the appellant is on a different portion of land and not the land leased to the writ petitioner. There is discrepancy in the total area of the Masjid in the two documents, i.e., the extract produced by the appellant from the register and the second survey report. The letter dated 17.4.2012 by the Anjuman Committee is based upon hearsay and is not of any binding value.17. Still further, there is no evidence at any given point of time that the structure was being used as a mosque. There is no allegation or proof of either of dedication or user or grant which can be termed as a waqf within the meaning of the Act.18. The report of the experts is relevant only to the extent that the structure has no archaeological or historical importance. In the absence of any proof of dedication or user, a dilapidated wall or a platform cannot be conferred a status of a religious place for the purpose of offering prayers/Namaaz.19. The stand of the State Government that they have identified it to be a religious structure comprising in Khasra No. 6731 has not been produced on record. There is nothing on record that such decision if any, was arrived at after associating the writ petitioner. It is always open to the State as lessor to exercise the powers conferred in it by the lease deed after complying the principles of natural justice and on good and sufficient grounds. | 0 | 2,912 | 356 | ### 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:
basis of which permission to lease was granted, Survey No. 931 over which the said structure is found in the survey report was not part of the lease. Survey No. 6731 measuring 158 Bigha 12 Biswa was the one over which the writ petitioner was granted permission to do the mining work but there is no document or report to show that any part of Survey No. 6731 was ever declared to be a religious structure within the meaning of waqf as defined under the Act. The learned counsel for the parties furnished the photocopies of the original documents on the basis of which reliance was placed by the appellant that the Tiranga Qalandari Masjid in Village Pur is a mosque and, therefore, no mining activity can be undertaken. 13. The first document so produced is undated but the subject shows that it is in respect of Auqaf to be registered in Ajmer and Sunel Regions of the State till 5.1.1959 and in the rest of Rajasthan by 1.4.1955. A reading of the said report shows that it does not have any survey number, though the value of waqf was assessed at Rs.900/- and the purpose of use was for Namaaz. Thereafter, a notification was published on 23.9.1965 declaring Qalandari Masjid of Tiranga as the waqf property as the nature and object are pious, religious and for offering prayers. The appellant has produced an extract from its register pointing out that 12 x 9 measuring 108 is Tiranga Ki Qalandari Masjid. Another document produced by the appellant is the survey report dated 15.1.2002 to the effect that the Qalandari Masjid on Tiranga Hill is situated in Survey No. 931. 14. With this factual background, Mr. Ranjit Kumar and Mr. C.S. Vaidyanathan have argued that the claim of the appellant is wholly untenable as at no point of time, any revenue record shows any religious structure on the land comprising in Survey No. 6731. In fact, the religious structure is said to be in existence over Survey No. 931. Still further, the record of the appellant shows that the area of the religious structure is 108 feet whereas in the second survey report, the area is shown to be 525 feet. Hence, there is a discrepancy about the area over which the religious structure is in existence. 15. It has also been contended that a perusal of the photographs shows that the structure is totally dilapidated without any roof and in fact a wall and some broken derelict platform exist at the spot. The area is surrounded by vegetation and there is also nothing to suggest that the structure was ever used for offering prayers (Namaaz) as neither the area is accessible, nor there is any facility of Wazoo (The practice of ritual purification i.e., to wash face, hands, arms and feet before daily prayer), which is stated to be an essential step before offering prayer. The experts from the Archaeological Department have reported that the structure has no historical or archaeological importance. It is further contended that the Tehsildar, before the possession was delivered, had given an extensive report of each of the structure existing on the land proposed to be given. The lands for graveyard and other religious structures have been excluded from the lease. Therefore, the act of identification carried out years before raising of the dispute done by the revenue officials in the course of their official duties carry presumption of correctness. It shows that the structure had no religious value. 16. We have heard learned counsel for the parties at length and find no merit in the appeals. The Qalandari Masjid on Tiranga Hill as per the document produced by the appellant is located on Survey No. 931. There is no assertion that the Survey No. 931 is changed as Survey No. 6731. In fact, the old number of Survey No. 6731 is 9646 or may be some other number but positively not the survey number 931. Therefore, the claim of the appellant is on a different portion of land and not the land leased to the writ petitioner. There is discrepancy in the total area of the Masjid in the two documents, i.e., the extract produced by the appellant from the register and the second survey report. The letter dated 17.4.2012 by the Anjuman Committee is based upon hearsay and is not of any binding value. 17. Still further, there is no evidence at any given point of time that the structure was being used as a mosque. There is no allegation or proof of either of dedication or user or grant which can be termed as a waqf within the meaning of the Act. Section 3 (r) of the Act reads thus:- [(r) waqf means the permanent dedication by any person, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes— (i) a waqf by user but such waqf shall not cease to be a waqf by reason only of the user having ceased irrespective of the period of such cesser; (ii) a Shamlat Patti, Shamlat Deh, Jumla Malkkan or by any other name entered in a revenue record; (iii) xxx xxx 18. The report of the experts is relevant only to the extent that the structure has no archaeological or historical importance. In the absence of any proof of dedication or user, a dilapidated wall or a platform cannot be conferred a status of a religious place for the purpose of offering prayers/Namaaz. 19. The stand of the State Government that they have identified it to be a religious structure comprising in Khasra No. 6731 has not been produced on record. There is nothing on record that such decision if any, was arrived at after associating the writ petitioner. It is always open to the State as lessor to exercise the powers conferred in it by the lease deed after complying the principles of natural justice and on good and sufficient grounds.
### Response:
0
### Explanation:
16. We have heard learned counsel for the parties at length and find no merit in the appeals. The Qalandari Masjid on Tiranga Hill as per the document produced by the appellant is located on Survey No. 931. There is no assertion that the Survey No. 931 is changed as Survey No. 6731. In fact, the old number of Survey No. 6731 is 9646 or may be some other number but positively not the survey number 931. Therefore, the claim of the appellant is on a different portion of land and not the land leased to the writ petitioner. There is discrepancy in the total area of the Masjid in the two documents, i.e., the extract produced by the appellant from the register and the second survey report. The letter dated 17.4.2012 by the Anjuman Committee is based upon hearsay and is not of any binding value.17. Still further, there is no evidence at any given point of time that the structure was being used as a mosque. There is no allegation or proof of either of dedication or user or grant which can be termed as a waqf within the meaning of the Act.18. The report of the experts is relevant only to the extent that the structure has no archaeological or historical importance. In the absence of any proof of dedication or user, a dilapidated wall or a platform cannot be conferred a status of a religious place for the purpose of offering prayers/Namaaz.19. The stand of the State Government that they have identified it to be a religious structure comprising in Khasra No. 6731 has not been produced on record. There is nothing on record that such decision if any, was arrived at after associating the writ petitioner. It is always open to the State as lessor to exercise the powers conferred in it by the lease deed after complying the principles of natural justice and on good and sufficient grounds.
|
Jai Narain Vs. Kishen Chand | tenant was the proper order to make in view of the finding that he had caused substantial damage to the premises. However, the matter comes to the Court because of the passing of the Delhi Rent Control Act, 1958 which came into force on February 9, 1959. Section 57 (1) of that Act provided that the Delhi and Ajmer Rent Control Act 1952 in so far as it was applicable to the Union Territory of Delhi, was being repealed. While repealing it, a special saving was however made by sub-section (2) of the same section in favour of all suits and other proceedings which were then pending under the repealed Act and it was provided that those suits and proceedings should be continued and disposed of in accordance with the provisions of the Act as if that Act had continued to be in force and the new Act had not been passed. This would have really been a very proper provision to make to separate the operation of the two Acts but the Legislature went still further and added two provisos. We are concerned only with the first of the two provisos on which much dispute has arisen in this case. That proviso reads as follows :"Provided that in any such suit or proceeding for the fixation of standard rent or for the eviction of a tenant from any premises to which Section 54 does not apply, the Court or other authority shall have regard to the provisions of this Act:" This proviso contains a proviso within itself which excepts the case of premises to which Section 54 of the Act does not apply. That section provides as follows :"Nothing in this Act shall affect the provisions of the Administration of Evacuee Property Act, 1950, or the Slum Areas (In government and Clearance) Act, 1956 or the Delhi Tenants (Temporary Protection) Act, 1956."The effect of the proviso which we have quoted above is variously described by Counsel on opposite sides.According to Mr. C. B. Agarwala who argued for the tenant, the words "to which Section 54 does not apply" govern the words "any such suit or proceeding" and not the words "any premises". The High Court in the order passed on review was of the opinion that these words governed the words "any premises". In our opinion, this is the correct view to take of the matter.4. To begin with, it must be noticed that the proviso speaks of two things, namely, the fixation of standard rent and the eviction of a tenant from any premises. The words "from any premises" cannot be connected with the phrase "for the fixation of standard rent, because then the preposition would have been "of any premises" or "for any premises" and not "from any premises." This means that the first phrase has to be read as complete in itself beginning from the words for the fixation" and ending with the words, "standard rent". The second phrase then reads "or for the eviction of a tenant from any premises." The words "from any premises" go very clearly with the words "eviction of a tenant" and not with the words "any suit or proceeding".5. The question then aries, where does the phrase "to which Section 54 does not apply" connect itself According to Mr. Agarwala that phrase must be connected with the words "in any such suit or proceeding." Since the suits contain two kinds of matters, namely, fixation of standard rent and eviction of a tenant from any premises, we have to turn to the provisions of the statutes to which Section 54 refers, namely, the Administration of Evacuee Property Act, 1950, the Slum Areas (Improvement and Clearance) Act, 1956 and the Delhi Tenants (Temporary Protection) Act, 1956. The first two do not deal at all with the fixation of fair rent and the third speaks of fair rent, but it does not provide for its fixation. It would be pointless to use the language any suit or proceeding to which Sec. 54 does not apply in relation to fixation of standard rent. It follows therefore that the phrase "to which Section 54 does not apply really governs premises. Read in that way, all the three Acts fall in line, because they provide for premises and not for fixation of standard rent. The Administration of Evacuee Property Act, 1950, the Slum Areas (Improvement and Clearance) Act, 1956 and the Delhi Tenants (Temporary Protection) Act, 1956 all deal with premises and property and therefore the phrase "to which Section 54 does not apply" is connected with the word "premises".That is the view which the High Court has taken and we think rightly. We proviso did not apply and the matter had to be governed by the old Delhi and Ajmer Rent Control Act, 1952 which had been revealed.6. It was contended before us that this legislation was intended to soften action against tenants still further and that the policy of the law had been to give more and more protection to the tenants and we must therefore read the statute in consonance with that policy. This would be an argument to consider if the language of the statute was not quite clear. But the language is clear enough to show that the proviso applies only to those cases in which Section 54 cannot be made applicable.It is admitted before us that this area is subjected to the Slum Areas (Improvement and Clearance) Act, 1956. If that is so, then, on the terms of the proviso on which much reliance is placed by Mr. Agarwala, the provisions of the Delhi Rent Control Act, 1958 cannot be taken into consideration. They are to be taken into consideration only in those cases to which the Acts mentioned in Section 54 do not apply, that is to say, in respect of premises not governed by those statutes. Since this shop is governed by one of the statutes, the proviso has no application. The High Courts view was therefore right. | 0[ds]We are concerned only with the first of the two provisos on which much dispute has arisen in this case. That proviso reads as follows :"Provided that in any such suit or proceeding for the fixation of standard rent or for the eviction of a tenant from any premises to which Section 54 does not apply, the Court or other authority shall have regard to the provisions of this Act:" This proviso contains a proviso within itself which excepts the case of premises to which Section 54 of the Act does not apply. That section provides as followsin this Act shall affect the provisions of the Administration of Evacuee Property Act, 1950, or the Slum Areas (In government and Clearance) Act, 1956 or the Delhi Tenants (Temporary Protection) Act,effect of the proviso which we have quoted above is variously described by Counsel on oppositeTo begin with, it must be noticed that the proviso speaks of two things, namely, the fixation of standard rent and the eviction of a tenant from any premises. The words "from any premises" cannot be connected with the phrase "for the fixation of standard rent, because then the preposition would have been "of any premises" or "for any premises" and not "from any premises." This means that the first phrase has to be read as complete in itself beginning from the words for the fixation" and ending with the words, "standard rent". The second phrase then reads "or for the eviction of a tenant from any premises." The words "from any premises" go very clearly with the words "eviction of a tenant" and not with the words "any suit orto Mr. Agarwala that phrase must be connected with the words "in any such suit or proceeding.t was contended before us that this legislation was intended to soften action against tenants still further and that the policy of the law had been to give more and more protection to the tenants and we must therefore read the statute in consonance with thatDelhi and Ajmer Rent Control Act, 1952. Section 13 (1)(k) of thatthe suits contain two kinds of matters, namely, fixation of standard rent and eviction of a tenant from any premises, we have to turn to the provisions of the statutes to which Section 54 refers, namely, the Administration of Evacuee Property Act, 1950, the Slum Areas (Improvement and Clearance) Act, 1956 and the Delhi Tenants (Temporary Protection) Act, 1956. The first two do not deal at all with the fixation of fair rent and the third speaks of fair rent, but it does not provide for its fixation. It would be pointless to use the language any suit or proceeding to which Sec. 54 does not apply in relation to fixation of standard rent. It follows therefore that the phrase "to which Section 54 does not apply really governs premises. Read in that way, all the three Acts fall in line, because they provide for premises and not for fixation of standard rent. The Administration of Evacuee Property Act, 1950, the Slum Areas (Improvement and Clearance) Act, 1956 and the Delhi Tenants (Temporary Protection) Act, 1956 all deal with premises and property and therefore the phrase "to which Section 54 does not apply" is connected with the word "premises".That is the view which the High Court has taken and we think rightly. We proviso did not apply and the matter had to be governed by the old Delhi and Ajmer Rent Control Act, 1952 which had beenwould be an argument to consider if the language of the statute was not quite clear. But the language is clear enough to show that the proviso applies only to those cases in which Section 54 cannot be made applicable.It is admitted before us that this area is subjected to the Slum Areas (Improvement and Clearance) Act, 1956. If that is so, then, on the terms of the proviso on which much reliance is placed by Mr. Agarwala, the provisions of the Delhi Rent Control Act, 1958 cannot be taken into consideration. They are to be taken into consideration only in those cases to which the Acts mentioned in Section 54 do not apply, that is to say, in respect of premises not governed by those statutes. Since this shop is governed by one of the statutes, the proviso has no application. The High Courts view was therefore right. | 0 | 1,864 | 843 | ### 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:
tenant was the proper order to make in view of the finding that he had caused substantial damage to the premises. However, the matter comes to the Court because of the passing of the Delhi Rent Control Act, 1958 which came into force on February 9, 1959. Section 57 (1) of that Act provided that the Delhi and Ajmer Rent Control Act 1952 in so far as it was applicable to the Union Territory of Delhi, was being repealed. While repealing it, a special saving was however made by sub-section (2) of the same section in favour of all suits and other proceedings which were then pending under the repealed Act and it was provided that those suits and proceedings should be continued and disposed of in accordance with the provisions of the Act as if that Act had continued to be in force and the new Act had not been passed. This would have really been a very proper provision to make to separate the operation of the two Acts but the Legislature went still further and added two provisos. We are concerned only with the first of the two provisos on which much dispute has arisen in this case. That proviso reads as follows :"Provided that in any such suit or proceeding for the fixation of standard rent or for the eviction of a tenant from any premises to which Section 54 does not apply, the Court or other authority shall have regard to the provisions of this Act:" This proviso contains a proviso within itself which excepts the case of premises to which Section 54 of the Act does not apply. That section provides as follows :"Nothing in this Act shall affect the provisions of the Administration of Evacuee Property Act, 1950, or the Slum Areas (In government and Clearance) Act, 1956 or the Delhi Tenants (Temporary Protection) Act, 1956."The effect of the proviso which we have quoted above is variously described by Counsel on opposite sides.According to Mr. C. B. Agarwala who argued for the tenant, the words "to which Section 54 does not apply" govern the words "any such suit or proceeding" and not the words "any premises". The High Court in the order passed on review was of the opinion that these words governed the words "any premises". In our opinion, this is the correct view to take of the matter.4. To begin with, it must be noticed that the proviso speaks of two things, namely, the fixation of standard rent and the eviction of a tenant from any premises. The words "from any premises" cannot be connected with the phrase "for the fixation of standard rent, because then the preposition would have been "of any premises" or "for any premises" and not "from any premises." This means that the first phrase has to be read as complete in itself beginning from the words for the fixation" and ending with the words, "standard rent". The second phrase then reads "or for the eviction of a tenant from any premises." The words "from any premises" go very clearly with the words "eviction of a tenant" and not with the words "any suit or proceeding".5. The question then aries, where does the phrase "to which Section 54 does not apply" connect itself According to Mr. Agarwala that phrase must be connected with the words "in any such suit or proceeding." Since the suits contain two kinds of matters, namely, fixation of standard rent and eviction of a tenant from any premises, we have to turn to the provisions of the statutes to which Section 54 refers, namely, the Administration of Evacuee Property Act, 1950, the Slum Areas (Improvement and Clearance) Act, 1956 and the Delhi Tenants (Temporary Protection) Act, 1956. The first two do not deal at all with the fixation of fair rent and the third speaks of fair rent, but it does not provide for its fixation. It would be pointless to use the language any suit or proceeding to which Sec. 54 does not apply in relation to fixation of standard rent. It follows therefore that the phrase "to which Section 54 does not apply really governs premises. Read in that way, all the three Acts fall in line, because they provide for premises and not for fixation of standard rent. The Administration of Evacuee Property Act, 1950, the Slum Areas (Improvement and Clearance) Act, 1956 and the Delhi Tenants (Temporary Protection) Act, 1956 all deal with premises and property and therefore the phrase "to which Section 54 does not apply" is connected with the word "premises".That is the view which the High Court has taken and we think rightly. We proviso did not apply and the matter had to be governed by the old Delhi and Ajmer Rent Control Act, 1952 which had been revealed.6. It was contended before us that this legislation was intended to soften action against tenants still further and that the policy of the law had been to give more and more protection to the tenants and we must therefore read the statute in consonance with that policy. This would be an argument to consider if the language of the statute was not quite clear. But the language is clear enough to show that the proviso applies only to those cases in which Section 54 cannot be made applicable.It is admitted before us that this area is subjected to the Slum Areas (Improvement and Clearance) Act, 1956. If that is so, then, on the terms of the proviso on which much reliance is placed by Mr. Agarwala, the provisions of the Delhi Rent Control Act, 1958 cannot be taken into consideration. They are to be taken into consideration only in those cases to which the Acts mentioned in Section 54 do not apply, that is to say, in respect of premises not governed by those statutes. Since this shop is governed by one of the statutes, the proviso has no application. The High Courts view was therefore right.
### Response:
0
### Explanation:
We are concerned only with the first of the two provisos on which much dispute has arisen in this case. That proviso reads as follows :"Provided that in any such suit or proceeding for the fixation of standard rent or for the eviction of a tenant from any premises to which Section 54 does not apply, the Court or other authority shall have regard to the provisions of this Act:" This proviso contains a proviso within itself which excepts the case of premises to which Section 54 of the Act does not apply. That section provides as followsin this Act shall affect the provisions of the Administration of Evacuee Property Act, 1950, or the Slum Areas (In government and Clearance) Act, 1956 or the Delhi Tenants (Temporary Protection) Act,effect of the proviso which we have quoted above is variously described by Counsel on oppositeTo begin with, it must be noticed that the proviso speaks of two things, namely, the fixation of standard rent and the eviction of a tenant from any premises. The words "from any premises" cannot be connected with the phrase "for the fixation of standard rent, because then the preposition would have been "of any premises" or "for any premises" and not "from any premises." This means that the first phrase has to be read as complete in itself beginning from the words for the fixation" and ending with the words, "standard rent". The second phrase then reads "or for the eviction of a tenant from any premises." The words "from any premises" go very clearly with the words "eviction of a tenant" and not with the words "any suit orto Mr. Agarwala that phrase must be connected with the words "in any such suit or proceeding.t was contended before us that this legislation was intended to soften action against tenants still further and that the policy of the law had been to give more and more protection to the tenants and we must therefore read the statute in consonance with thatDelhi and Ajmer Rent Control Act, 1952. Section 13 (1)(k) of thatthe suits contain two kinds of matters, namely, fixation of standard rent and eviction of a tenant from any premises, we have to turn to the provisions of the statutes to which Section 54 refers, namely, the Administration of Evacuee Property Act, 1950, the Slum Areas (Improvement and Clearance) Act, 1956 and the Delhi Tenants (Temporary Protection) Act, 1956. The first two do not deal at all with the fixation of fair rent and the third speaks of fair rent, but it does not provide for its fixation. It would be pointless to use the language any suit or proceeding to which Sec. 54 does not apply in relation to fixation of standard rent. It follows therefore that the phrase "to which Section 54 does not apply really governs premises. Read in that way, all the three Acts fall in line, because they provide for premises and not for fixation of standard rent. The Administration of Evacuee Property Act, 1950, the Slum Areas (Improvement and Clearance) Act, 1956 and the Delhi Tenants (Temporary Protection) Act, 1956 all deal with premises and property and therefore the phrase "to which Section 54 does not apply" is connected with the word "premises".That is the view which the High Court has taken and we think rightly. We proviso did not apply and the matter had to be governed by the old Delhi and Ajmer Rent Control Act, 1952 which had beenwould be an argument to consider if the language of the statute was not quite clear. But the language is clear enough to show that the proviso applies only to those cases in which Section 54 cannot be made applicable.It is admitted before us that this area is subjected to the Slum Areas (Improvement and Clearance) Act, 1956. If that is so, then, on the terms of the proviso on which much reliance is placed by Mr. Agarwala, the provisions of the Delhi Rent Control Act, 1958 cannot be taken into consideration. They are to be taken into consideration only in those cases to which the Acts mentioned in Section 54 do not apply, that is to say, in respect of premises not governed by those statutes. Since this shop is governed by one of the statutes, the proviso has no application. The High Courts view was therefore right.
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R. L. Arora Vs. State Of U. P | for there is no question of any mala fides or fraud on the Act in the present case. What the appellant contends is that the relevant words in Ss. 40 and 41 have a certain meaning and that on that meaning the action of the State Government in giving consent for the use of the machinery provided in the Act for the acquisition of land for the Works is not within the contemplation of the Act. This contention has nothing to do with mala fides or with fraud on the statute. It has always been the case of the appellant that the consent given by the Government was not within the meaning of the relevant words in Ss. 40 and 41 and therefore the entire proceedings for acquisition of the appellants land must be quashed, for the conditions precedent for the issue of the notification under S. 6 had not been complied with. On that case the appellant must succeed, if we accept the meaning for which he contends, and that has nothing to do with mala fides or fraud on the statute on the part of the Government. 20. Lastly we may notice an argument on behalf of the appellant that if we look to the history behind the legislation which culminated into the Act, we shall find that acquisition for a company was always for construction of some work which the public could use. Reference in this connection was made to Act XXII of 1863 which provided for acquisition for private individuals and companies. That Act applied to works of public utility which were defined under S. 11 to mean any bridge, road, railroad, tramroad, canal for irrigation or navigation, work for the improvement of a river or harbour, dock, quay, jetty, drainage work or electric telegraph and also all works subsidiary to any, such work, At the same time there was another Act in force, namely, Act VI of 1857, which provided for acquisition of land for public purposes. Then came the Act (X of 1870), which repealed both Acts No. VI of 1857 and No. XXII of 1868 and made a consolidated provision for acquisition of land for pubic purposes and for companies and brought in Chap. VII for the first time. This Act was replaced in 1894 by the present Act, However, Act X of 1870 was a consolidating and amending, Act. The Act of 1894 is also an amending Act. Therefore, it is not possible to derive much assistance from the previous law existing before the Act of 1870 was passed for it not only consolidated the previous law but also amended it. We have therefore to interpret the Act on the words as they now stand and cannot derive much assistance from the provisions of Act XXII of 1863. That is why we have interpreted above the relevant words of Ss. 40 and 41 without any reference to the past history of the law relating to acquisition of land for public purposes and for companies. 21. Coming now to the facts of the present case, we have to see whether the acquisition is for a work which is useful to the public under S. 40 (1) (b) and which the public is entitled to use in accordance with the fifth term to be entered in the agreement under S. 41.We have already set out the term in the agreement which shows that those who have business with the company shall have such right of access to and use of the land/works herein and before specified as may be necessary for the transaction of their business with the firm. This in our opinion is not what the relevant provisions of Ss. 40 and 41 require. What these provisions require is that the work should be directly useful to the public and the agreement shall contain a term how the public shall have the right to use the work directly themselves. It seems to us that under the relevant words in Ss. 40 (1) (b) and 41 it is works like a hospital, a public reading room or a library or an educational institution open to the public or such other work as the public may directly use that are contemplated and it is only for such works which are useful to the public in this way and can be directly used by it that land can be acquired for a company under the Act. This is also the implication of the following observations of this Court in Babu Barkya Thakurs case (1961)1 SCR 128 at pp.137-38 ; (AIR 1960 SC 1203 at p. 1207), with reference to Ss. 40 and 41:- In an industrial concern employing a large number of workmen away from their homes it is a social necessity that there should be proper housing accommodation available for such workmen. Where a large Section of the community is concerned, its welfare is a matter of public concern. Similarly, if a Company is generous enough to erect a hospital or a public reading room and library or an educational institution open to the public, it cannot be doubted that the work is one of public utility and comes within the provisions of the Act. The fact that the product of the company would be useful to the public is not sufficient to bring the acquisition for a company within the meaning of the relevant words in Ss. 40 and 41.In the present case all that the Government was satisfied about appears to be that the product of the company will be useful to the public and the provision in the agreement is merely that the public shall be able to go upon the works for purposes of business. This in our opinion is not the meaning of the relevant words under Ss. 40 and 41 and therefore the Governments satisfaction in that behalf is not enough to entitle it to use the machinery of the Act for the purpose of acquisition in this case. | 1[ds]In the present case it is not the case of the respondents that any part of the compensation is to be paid out of what may be called public funds. It is not in dispute that the entire compensation is to be paid by the Works and therefore the provisions of Part VII would apply to the present case; and it is in this background that we have to consider the contention raised on behalf of the appellant6. We have already pointed out that S. 39 as well as the opening words of S. 6 make it clear that the operative provisions of the Act for the purpose of acquiring land for a company will only apply when two conditions precedent have been satisfied, namely, (i) the previous consent of the appropriate government has been given to the acquisition, and (ii) the company has entered into an agreement as provided in the Act7. Now S. 40(1) lays down that such consent shall not be given unless the appropriate government is satisfied either on the report of the Collector under S. 5A (2) or by an inquiry held as hereinafter provided (a) that the purpose of the acquisition is to obtain land for the erection of dwelling houses for workmen employed by the company or for the provision of amenities directly connected therewith, or (b) that such acquisition is needed for the construction of a work, and that such work is likely to prove useful to the public8. The Government therefore cannot give consent to the acquisition of land for a company unless it is satisfied about one or other of the two conditions mentioned in S. 40(1). We are in the present case not concerned with cl. (a) of S. 40(1) and need not refer to it further9. We are of opinion that it is not possible to interpret S. 40(1)(b) in isolation and by itself ; it has to be interpreted in the context of what is provided in S. 41 about the agreement to be entered into between the Government and the company which agreement becomes a part of the Act under S. 42 so far as regards the terms on which the public shall be entitled to use the workThe problem that has been posed before us does not appear to have been posed before the High Court in that form. Further the High Court seems to have thought that as the Sections provided for the satisfaction of the Government there was no power in a court to enter upon a consideration of the question how far that provision safeguarded the interests of the Government or of the public. This decision seems to suggest that the Governments decision as to the terms is completely final and as the Government was satisfied by the norms it had imposed in that case the matter was no longer open before the court. All that we need say about this case is, as already pointed out, that the question was not raised before the High Court in the manner in which it has been raised before us and that may account for the view taken by the High Court. It is also well to remember that in that case premises were required for the Public Debt 0ffice of the Government which was then under the management of the Bank of Bengal and that may have had something to do with the final decision. But, in any case, this case does not lay down that it is for the Government to determine what the relevant words in Ss. 40 and 41 mean, though the High Court is right when it says that it is not for the court to enter upon a consideration of the question how far the provision made by the Government in the terms of the agreement sufficiently safeguards the interests of the public, that being a matter entirely for the satisfaction of the Government. But as the matter was not considered by the High Court from the point of view from which it has been argued before us, this case cannot be treated as a decision on the interpretation of the relevant words in Ss. 40 and 41 merely by implication. In any case, if by implication the said decision supports the respondents contention, it does not correctly represent the true legal position in that behalf. In our opinion, the interpretation of the material terms in S. 40 (1) (b) and the fifth term of the agreement provided in S. 41 read together is and must always be within the jurisdiction of the courtThe very fact therefore that the power to use the machinery of the Act for the acquisition of land for a company is conditioned by the restrictions in Ss. 40 and 41 indicates that the legislature intended that land should be acquired through the coercive machinery of the Act only for the restricted purpose mentioned in Ss. 40 and 41, which would also be a public purpose for the purpose of S. 4. We find it impossible to accept the argument that the intention of the legislature could have been that individuals should be compelled to part with their lands for private profit of others who might be owners of companies through the Government, simply because the company might produce goods which would be useful to the public. If therefore the legislature intended by the provisions of Ss. 40 and 41 that there should be restrictions on the power to acquire land for companies it can only be given effect to by putting the narrower meaning on the words used in Ss. 40 and 41, as contended for by the appellant. Further, reading S. 40 (1)(b) and the fifth term of the agreement as provided in S. 41 together (as they must in our opinion be read together in order to find out the real intention of the legislature) there can be no doubt that the only meaning to be given to these provisions read together is, as contended for on behalf of the appellant. In this connection we ought to add that as we shall presently point out the material words of the fifth term in the agreement provided in S. 41 are reasonably incapable of the construction suggested by the respondentsAll that the agreement has provided in the present case is that the public will have such right of access to and use of the land/works herein and before specified as may be necessary for the transaction of their business with the firm. This in our opinion is not what is meant by the words the terms on which the public shall be entitled to use the work in the fifth term of the agreement as provided in S. 41. Such use for business is implicit in every business, even if the Government does not acquire land for it, for no company can carry on for a moment its business with any profit if it does not allow those with whom it has business to come to its premises. Therefore, when the fifth term provides for the use of the work by the public as of right it cannot possibly envisage the use only by those who have business with a factory (for example) and their going there to transact business; such use would in any case have to be permitted by the owner of the company, as otherwise it will not be worth his while to run the company at all. Therefore, when the fifth term provides that the public shall be entitled to use the work it means that the public shall be entitled to use the work directly and as of right for its own benefit and does not mean that those who have business with the company can go upon the work for that business. Reading therefore S. 40(1) (b) and the fifth term of the agreement provided in S. 41, there is in our opinion no doubt that the intention of the legislature was that land should be acquired only when the work to be constructed is directly useful to the public and the public shall be entitled to use the work as such for its own benefit in accordance with the terms of the agreement which under S. 42 are made to have the same effect as if they form part of the Act. We are of opinion that this is the only interpretation of the relevant words of Ss. 40 and 41, and the legislature could not have intended otherwiseWe are of opinion that this argument is entirely fallacious. It is true that it is for the Government to be satisfied that the work to be constructed will be useful to the public; it is also true that it is for the Government to be satisfied that there is a term in the agreement providing that the public shall be entitled to use the work; but this does not mean that it is the Government which has the right to interpret the words used in S. 40(1)(b) or in the fifth term of the agreement in S. 41. It is the court which has to interpret what those words mean. After the court has interpreted these words, it is the Government which has to carry out the object of Ss. 40 and 41 to its satisfaction. The Government cannot say that Ss. 40 and 41 mean this and further say that they are satisfied that the meaning they have given to the relevant words in these Sections has been carried out in the terms of the agreement provided by them. It is for the court to say what the words in Ss. 40 and 41 mean though it is for the Government to decide whether the work is useful to the public and whether the terms contain provisions for the manner in which the public shall be entitled to use the work. It is only in this latter part that the Governments satisfaction comes in and if the Government is satisfied, that satisfaction may not be open to challenge; but the satisfaction of the Government must be based on the meaning given to the relevant words in Ss. 40 and 41 by the court. The Government cannot both give meaning to the words and also say that they are satisfied on the meaning given by them. The meaning has to be given by the court and it is only thereafter that, the Governments satisfaction may not be open to challenge if they have carried out the meaning given to the relevant words by the court. The argument therefore that it is the Governments satisfaction which is required both by S. 40 and S. 41 is of no help to the respondents, for it is for the court to say what these words mean and then see whether the Government are satisfied according to the meaning given to these words by the court. We have already indicated what these words mean and if it plainly appears that the Government are satisfied as a result of giving some other meaning to the words, the satisfaction of the Government is of no use, for then they are not satisfied about what they should be satisfied. In the present case the Government seems to have taken a wrong view that so long as the product of the Works is useful to the public and so long as the public is entitled to go upon the Works in the way of business, that is all that is required by the relevant words in Ss. 40 and 41. We have held that this is not the meaning of the relevant words in Ss. 40 and 41 and therefore the Governments satisfaction on this meaning cannot be binding and would be worthlessBut we do not think it necessary to examine the American cases cited before us because the words in our statute are not pari materia with the words used in the fifth amendment to the American Constitution. The fifth amendment contemplates that private property shall not be acquired except for public use. The public use there is thus connected with the purpose of acquisition and may perhaps in certain conceivable circumstances depending upon the conditions in a particular State, be open to a wider interpretation. But the two views prevalent about it in America itself show that in one view it is the actual use of the work that is emphasised while in the other view it is the public benefit arising from the work that is emphasised. Now so far as the words in the Act are concerned, it is to our mind perfectly obvious that it is the actual use of the work which the Act envisages and not the public benefit that might directly or indirectly arise from the use of the land acquired. This is clear from the words used both in S. 40(1)(b) and the fifth term of the agreement provided in S. 41Section 40(1)(b) requires that the acquisition is for the construction of some work, and that that work is likely to prove useful to the public. It does not say that the acquisition of land would be useful to the public. Further the fifth term in the agreement provided in S. 41 makes this clear beyond all doubt for it provides that the agreement shall contain the terms on which the public shall be entitled to use the work. These words therefore in the Act are clearly referable to the narrower view prevalent in America, which emphasises the use by the public of the actual work constructed. We are therefore of opinion that the respondents can derive no advantage from the American cases cited on their behalf to show the wider interpretation of the words used in the fifth amendment to the American ConstitutionThat again is a mater into which we need not go, and it is unnecessary to consider why the legislature provided S. 50 in the Damodar Valley Corporation Act and did not provide some similar Section in other Acts creating statutory corporations which were enacted after the Damodar Valley Corporation Act was put on the statute book. These considerations in our opinion have no relevance to the interpretation of the relevant words of Ss, 40 and 41 of the Act and we do not therefore propose to say anything about S. 50 of the Damodar Valley Corporation Act. We may add that the works are not like the Damodar Valley Corporation and what we say in the present case may not necessarily be taken to apply to a statutory corporation like the Damodar Valley Corporation, which is wholly owned by the StateWe have not been able to understand how that provision helps the respondents, All that S. 6 (3) says is that the declaration shall be conclusive evidence that the land is needed for a public purpose or for a company. In this case the declaration was that the land was needed for a company and that according to S. 6 (3) is conclusive evidence that the land is so needed. Now it is not the case of the appellant that the land was not needed for the Works in the present case, nor does the appellant say that though the land was needed for some other purpose, the notification falsely declares that it was needed for the Works. In the circumstances the conclusiveness envisaged by S. 6 (3) is of no assistance to the solving of the problem with which we are concerned in the present caseThere is no force in this argument either, for there is no question of any mala fides or fraud on the Act in the present case. What the appellant contends is that the relevant words in Ss. 40 and 41 have a certain meaning and that on that meaning the action of the State Government in giving consent for the use of the machinery provided in the Act for the acquisition of land for the Works is not within the contemplation of the Act. This contention has nothing to do with mala fides or with fraud on the statute. It has always been the case of the appellant that the consent given by the Government was not within the meaning of the relevant words in Ss. 40 and 41 and therefore the entire proceedings for acquisition of the appellants land must be quashed, for the conditions precedent for the issue of the notification under S. 6 had not been complied with. On that case the appellant must succeed, if we accept the meaning for which he contends, and that has nothing to do with mala fides or fraud on the statute on the part of the GovernmentThat Act applied to works of public utility which were defined under S. 11 to mean any bridge, road, railroad, tramroad, canal for irrigation or navigation, work for the improvement of a river or harbour, dock, quay, jetty, drainage work or electric telegraph and also all works subsidiary to any, such work, At the same time there was another Act in force, namely, Act VI of 1857, which provided for acquisition of land for public purposes. Then came the Act (X of 1870), which repealed both Acts No. VI of 1857 and No. XXII of 1868 and made a consolidated provision for acquisition of land for pubic purposes and for companies and brought in Chap. VII for the first time. This Act was replaced in 1894 by the present Act, However, Act X of 1870 was a consolidating and amending, Act. The Act of 1894 is also an amending Act. Therefore, it is not possible to derive much assistance from the previous law existing before the Act of 1870 was passed for it not only consolidated the previous law but also amended it. We have therefore to interpret the Act on the words as they now stand and cannot derive much assistance from the provisions of Act XXII of 1863. That is why we have interpreted above the relevant words of Ss. 40 and 41 without any reference to the past history of the law relating to acquisition of land for public purposes and for companiesWe have already set out the term in the agreement which shows that those who have business with the company shall have such right of access to and use of the land/works herein and before specified as may be necessary for the transaction of their business with the firm. This in our opinion is not what the relevant provisions of Ss. 40 and 41 require. What these provisions require is that the work should be directly useful to the public and the agreement shall contain a term how the public shall have the right to use the work directly themselves. It seems to us that under the relevant words in Ss. 40 (1) (b) and 41 it is works like a hospital, a public reading room or a library or an educational institution open to the public or such other work as the public may directly use that are contemplated and it is only for such works which are useful to the public in this way and can be directly used by it that land can be acquired for a company under the ActThe fact that the product of the company would be useful to the public is not sufficient to bring the acquisition for a company within the meaning of the relevant words in Ss. 40 and 41.In the present case all that the Government was satisfied about appears to be that the product of the company will be useful to the public and the provision in the agreement is merely that the public shall be able to go upon the works for purposes of business. This in our opinion is not the meaning of the relevant words under Ss. 40 and 41 and therefore the Governments satisfaction in that behalf is not enough to entitle it to use the machinery of the Act for the purpose of acquisition in this case. | 1 | 9,086 | 3,597 | ### Instruction:
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for there is no question of any mala fides or fraud on the Act in the present case. What the appellant contends is that the relevant words in Ss. 40 and 41 have a certain meaning and that on that meaning the action of the State Government in giving consent for the use of the machinery provided in the Act for the acquisition of land for the Works is not within the contemplation of the Act. This contention has nothing to do with mala fides or with fraud on the statute. It has always been the case of the appellant that the consent given by the Government was not within the meaning of the relevant words in Ss. 40 and 41 and therefore the entire proceedings for acquisition of the appellants land must be quashed, for the conditions precedent for the issue of the notification under S. 6 had not been complied with. On that case the appellant must succeed, if we accept the meaning for which he contends, and that has nothing to do with mala fides or fraud on the statute on the part of the Government. 20. Lastly we may notice an argument on behalf of the appellant that if we look to the history behind the legislation which culminated into the Act, we shall find that acquisition for a company was always for construction of some work which the public could use. Reference in this connection was made to Act XXII of 1863 which provided for acquisition for private individuals and companies. That Act applied to works of public utility which were defined under S. 11 to mean any bridge, road, railroad, tramroad, canal for irrigation or navigation, work for the improvement of a river or harbour, dock, quay, jetty, drainage work or electric telegraph and also all works subsidiary to any, such work, At the same time there was another Act in force, namely, Act VI of 1857, which provided for acquisition of land for public purposes. Then came the Act (X of 1870), which repealed both Acts No. VI of 1857 and No. XXII of 1868 and made a consolidated provision for acquisition of land for pubic purposes and for companies and brought in Chap. VII for the first time. This Act was replaced in 1894 by the present Act, However, Act X of 1870 was a consolidating and amending, Act. The Act of 1894 is also an amending Act. Therefore, it is not possible to derive much assistance from the previous law existing before the Act of 1870 was passed for it not only consolidated the previous law but also amended it. We have therefore to interpret the Act on the words as they now stand and cannot derive much assistance from the provisions of Act XXII of 1863. That is why we have interpreted above the relevant words of Ss. 40 and 41 without any reference to the past history of the law relating to acquisition of land for public purposes and for companies. 21. Coming now to the facts of the present case, we have to see whether the acquisition is for a work which is useful to the public under S. 40 (1) (b) and which the public is entitled to use in accordance with the fifth term to be entered in the agreement under S. 41.We have already set out the term in the agreement which shows that those who have business with the company shall have such right of access to and use of the land/works herein and before specified as may be necessary for the transaction of their business with the firm. This in our opinion is not what the relevant provisions of Ss. 40 and 41 require. What these provisions require is that the work should be directly useful to the public and the agreement shall contain a term how the public shall have the right to use the work directly themselves. It seems to us that under the relevant words in Ss. 40 (1) (b) and 41 it is works like a hospital, a public reading room or a library or an educational institution open to the public or such other work as the public may directly use that are contemplated and it is only for such works which are useful to the public in this way and can be directly used by it that land can be acquired for a company under the Act. This is also the implication of the following observations of this Court in Babu Barkya Thakurs case (1961)1 SCR 128 at pp.137-38 ; (AIR 1960 SC 1203 at p. 1207), with reference to Ss. 40 and 41:- In an industrial concern employing a large number of workmen away from their homes it is a social necessity that there should be proper housing accommodation available for such workmen. Where a large Section of the community is concerned, its welfare is a matter of public concern. Similarly, if a Company is generous enough to erect a hospital or a public reading room and library or an educational institution open to the public, it cannot be doubted that the work is one of public utility and comes within the provisions of the Act. The fact that the product of the company would be useful to the public is not sufficient to bring the acquisition for a company within the meaning of the relevant words in Ss. 40 and 41.In the present case all that the Government was satisfied about appears to be that the product of the company will be useful to the public and the provision in the agreement is merely that the public shall be able to go upon the works for purposes of business. This in our opinion is not the meaning of the relevant words under Ss. 40 and 41 and therefore the Governments satisfaction in that behalf is not enough to entitle it to use the machinery of the Act for the purpose of acquisition in this case.
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corporations which were enacted after the Damodar Valley Corporation Act was put on the statute book. These considerations in our opinion have no relevance to the interpretation of the relevant words of Ss, 40 and 41 of the Act and we do not therefore propose to say anything about S. 50 of the Damodar Valley Corporation Act. We may add that the works are not like the Damodar Valley Corporation and what we say in the present case may not necessarily be taken to apply to a statutory corporation like the Damodar Valley Corporation, which is wholly owned by the StateWe have not been able to understand how that provision helps the respondents, All that S. 6 (3) says is that the declaration shall be conclusive evidence that the land is needed for a public purpose or for a company. In this case the declaration was that the land was needed for a company and that according to S. 6 (3) is conclusive evidence that the land is so needed. Now it is not the case of the appellant that the land was not needed for the Works in the present case, nor does the appellant say that though the land was needed for some other purpose, the notification falsely declares that it was needed for the Works. In the circumstances the conclusiveness envisaged by S. 6 (3) is of no assistance to the solving of the problem with which we are concerned in the present caseThere is no force in this argument either, for there is no question of any mala fides or fraud on the Act in the present case. What the appellant contends is that the relevant words in Ss. 40 and 41 have a certain meaning and that on that meaning the action of the State Government in giving consent for the use of the machinery provided in the Act for the acquisition of land for the Works is not within the contemplation of the Act. This contention has nothing to do with mala fides or with fraud on the statute. It has always been the case of the appellant that the consent given by the Government was not within the meaning of the relevant words in Ss. 40 and 41 and therefore the entire proceedings for acquisition of the appellants land must be quashed, for the conditions precedent for the issue of the notification under S. 6 had not been complied with. On that case the appellant must succeed, if we accept the meaning for which he contends, and that has nothing to do with mala fides or fraud on the statute on the part of the GovernmentThat Act applied to works of public utility which were defined under S. 11 to mean any bridge, road, railroad, tramroad, canal for irrigation or navigation, work for the improvement of a river or harbour, dock, quay, jetty, drainage work or electric telegraph and also all works subsidiary to any, such work, At the same time there was another Act in force, namely, Act VI of 1857, which provided for acquisition of land for public purposes. Then came the Act (X of 1870), which repealed both Acts No. VI of 1857 and No. XXII of 1868 and made a consolidated provision for acquisition of land for pubic purposes and for companies and brought in Chap. VII for the first time. This Act was replaced in 1894 by the present Act, However, Act X of 1870 was a consolidating and amending, Act. The Act of 1894 is also an amending Act. Therefore, it is not possible to derive much assistance from the previous law existing before the Act of 1870 was passed for it not only consolidated the previous law but also amended it. We have therefore to interpret the Act on the words as they now stand and cannot derive much assistance from the provisions of Act XXII of 1863. That is why we have interpreted above the relevant words of Ss. 40 and 41 without any reference to the past history of the law relating to acquisition of land for public purposes and for companiesWe have already set out the term in the agreement which shows that those who have business with the company shall have such right of access to and use of the land/works herein and before specified as may be necessary for the transaction of their business with the firm. This in our opinion is not what the relevant provisions of Ss. 40 and 41 require. What these provisions require is that the work should be directly useful to the public and the agreement shall contain a term how the public shall have the right to use the work directly themselves. It seems to us that under the relevant words in Ss. 40 (1) (b) and 41 it is works like a hospital, a public reading room or a library or an educational institution open to the public or such other work as the public may directly use that are contemplated and it is only for such works which are useful to the public in this way and can be directly used by it that land can be acquired for a company under the ActThe fact that the product of the company would be useful to the public is not sufficient to bring the acquisition for a company within the meaning of the relevant words in Ss. 40 and 41.In the present case all that the Government was satisfied about appears to be that the product of the company will be useful to the public and the provision in the agreement is merely that the public shall be able to go upon the works for purposes of business. This in our opinion is not the meaning of the relevant words under Ss. 40 and 41 and therefore the Governments satisfaction in that behalf is not enough to entitle it to use the machinery of the Act for the purpose of acquisition in this case.
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Commissioner Of Sales Tax, Madhya Pradesh,Indore Vs. Madhya Pradesh Electricity Board, Jabalpur | not probably have been done under Entry 54. It is difficult to derive much assistance from the aforesaid entries. What has essentially to be seen is whether electric energy is "goods" within the meaning of the relevant provisions of the two Acts. The definition in terms is very wide according to which "goods" means all kinds of movable property.Then certain items are specifically excluded or included and electric energy or electricity is not one of them. The term "movable property" when considered with reference to "goods" as defined for the purposes of sale tax cannot be taken in a narrow sense and merely because electric energy is not tangible or cannot be moved or touched like, for instance, a piece of wood or a book it cannot cease to be movable property when it has all the attributes of such property. It is needless to repeat that it is capable of abstraction, consumption and use which, if done dishonestly, should attract punishment under Sec. 39 of the Indian Electricity Act, 1910. It can be transmitted, transferred, delivered, stored, possessed etc. in the same way as any other movable property. Even in Benjamin on Sale, 8th Edn., reference has been made at page 171 to County of Durham Electrical, etc., Co. v Inland Revenue, Commrs., (1909) 3 KB 604 in which electric energy was assumed to be "goods". If there can be sale and purchase of electric energy like any other movable object we see no difficulty in holding that electric energy was intended to be covered by the definition of "goods" in the two Acts.If that had not been the case there was no necessity of specifically exempting sale of electric energy from the payment of sales tax by making a provision for it in the Schedules to the two Acts. It cannot be denied that the Electricity Board carried on principally the businesses of selling, supplying or distributing electric energy. It would therefore clearly fall within the meaning of the expression "dealer" in the two Acts.10. As regards steam there has been a good deal of argument on the question whether it is liable to be assessed to sales tax in the hands of the Electric Board. According to Mr. Shroff the electricity Board carried on the business of selling steam to the Nepa Mills and that this has lasted for a number of years. It has been submitted that simply because the Electricity Board does not have any profit motive in supplying steam it cannot escape payment of sales tax because the steam is nevertheless being sold as "goods". The High Court was of the view that the water which the Nepa Mills supplied free to the Electricity Board became the property of the Board and in return for this free supply the Board agreed to give steam to Nepa Mills at a rate based solely on the coal consumed in producing steam. The mills had also agreed to reimburse the Electricity Board for the loss sustained on account of the mills not taking the "full demand of steam". According to the High Court there was no contract for the sale of steam as such and it was only for the labour and cost involved in its supply to the mills. The High Court relied on the findings of the Tribunal on this point and held that the turnover in respect of steam was not taxable. The tribunal in its order dated June 16, 1966 referred to certain conditions of working arrangement which were reduced to writing but which had not been properly executed as a contract which showed that the mills were supplying water free and the Electricity Board was making a pro rata charge of conversion of water into steam. It seems to us that the High Court was right in coming to the conclusion, on the finding of the tribunal, that the real arrangement was for supplying steam on actual cost basis and in that sense it was more akin to a labour contract than to sale.11. Mr. Shroff has argued that the document which was relied upon by the tribunal could not be looked at as it was neither admissible in evidence nor had it been properly executed as a contract between the Electricity Board and the mills and in happened to be a mere draft of an agreement which was proposed to be entered into.It is too late for Mr. Shroff to take these objections because these should have been raised before the Tribunal and the High Court.12. It is stated in Halsburys Laws of England, III Edn. Vol. 34 , page 6 that "a contract of sale of goods must be distinguished from a contract for work and labour. The distinction is often a fine one.A contract of sale is a contract whose main object is the transfer of the property in, and the delivery of possession of, a chattel as a chattel to the buyer. Where the main object of work undertaken by the payee of the price is not the transfer of a chattel qua chattel, the contract is one for work and labour. It has been laid down by this court in Govt. of Andhra Pradesh v. Guntur Tobaccos Ltd., 16 STC 240 = (AIR 1965 SC 1396 ), that in business transactions the works contracts are frequently not recorded in writing meeting out all the covenants and conditions thereof, and the terms and incidents of the contracts have to be gathered from the evidence and attendant circumstances. The question in each case is one about the true agreement between the parties and the terms of the agreement must be deduced from a review of all attended circumstances.On the findings of the tribunal and the High Court we are of the opinion that the arrangement relating to supply of steam in return for the water supplied by the mills on payment of actual cost was not one of sale but was more in the nature of a works contract. | 1[ds]6. The High Court went into a discussion from the point of view of mechanics relating to transmission of electric energy. It was of the view that electricity could not be regarded as an article or matter which could be possessed or moved or delivered. It relied on certain decisions and referred to Entries Nos. 53 and 54 in List II of Seventh Schedule to the Constitution and held that electricity did not fall within the meaning of "goods" in the two Acts and therefore the Electricity Board could not be held to be a "dealer" in respect of its activity of generation, distribution, sale and supply of electric energy.The reasoning which prevailed with the High Court was that a well-defined distinction existed between the sale or purchase of "goods" and consumption or sale of electricity otherwise there was no necessity of having Entry No. 53. But under Entry 53 taxes can be levied not only on sale of electricity but also on its consumption which could not probably have been done under Entry 54. It is difficult to derive much assistance from the aforesaid entries. What has essentially to be seen is whether electric energy is "goods" within the meaning of the relevant provisions of the two Acts. The definition in terms is very wide according to which "goods" means all kinds of movable property.Then certain items are specifically excluded or included and electric energy or electricity is not one of them. The term "movable property" when considered with reference to "goods" as defined for the purposes of sale tax cannot be taken in a narrow sense and merely because electric energy is not tangible or cannot be moved or touched like, for instance, a piece of wood or a book it cannot cease to be movable property when it has all the attributes of such property. It is needless to repeat that it is capable of abstraction, consumption and use which, if done dishonestly, should attract punishment under Sec. 39 ofthe Indian Electricity Act, 1910. It can be transmitted, transferred, delivered, stored, possessed etc. in the same way as any other movable property.As regards steam there has been a good deal of argument on the question whether it is liable to be assessed to sales tax in the hands of the Electric Board. According to Mr. Shroff the electricity Board carried on the business of selling steam to the Nepa Mills and that this has lasted for a number of years. It has been submitted that simply because the Electricity Board does not have any profit motive in supplying steam it cannot escape payment of sales tax because the steam is nevertheless being sold as "goods". The High Court was of the view that the water which the Nepa Mills supplied free to the Electricity Board became the property of the Board and in return for this free supply the Board agreed to give steam to Nepa Mills at a rate based solely on the coal consumed in producing steam. The mills had also agreed to reimburse the Electricity Board for the loss sustained on account of the mills not taking the "full demand of steam". According to the High Court there was no contract for the sale of steam as such and it was only for the labour and cost involved in its supply to the mills. The High Court relied on the findings of the Tribunal on this point and held that the turnover in respect of steam was not taxable. The tribunal in its order dated June 16, 1966 referred to certain conditions of working arrangement which were reduced to writing but which had not been properly executed as a contract which showed that the mills were supplying water free and the Electricity Board was making a pro rata charge of conversion of water into steam. It seems to us that the High Court was right in coming to the conclusion, on the finding of the tribunal, that the real arrangement was for supplying steam on actual cost basis and in that sense it was more akin to a labour contract than to sale.11. Mr. Shroff has argued that the document which was relied upon by the tribunal could not be looked at as it was neither admissible in evidence nor had it been properly executed as a contract between the Electricity Board and the mills and in happened to be a mere draft of an agreement which was proposed to be entered into.It is too late for Mr. Shroff to take these objections because these should have been raised before the Tribunal and the High Court. | 1 | 3,612 | 837 | ### Instruction:
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not probably have been done under Entry 54. It is difficult to derive much assistance from the aforesaid entries. What has essentially to be seen is whether electric energy is "goods" within the meaning of the relevant provisions of the two Acts. The definition in terms is very wide according to which "goods" means all kinds of movable property.Then certain items are specifically excluded or included and electric energy or electricity is not one of them. The term "movable property" when considered with reference to "goods" as defined for the purposes of sale tax cannot be taken in a narrow sense and merely because electric energy is not tangible or cannot be moved or touched like, for instance, a piece of wood or a book it cannot cease to be movable property when it has all the attributes of such property. It is needless to repeat that it is capable of abstraction, consumption and use which, if done dishonestly, should attract punishment under Sec. 39 of the Indian Electricity Act, 1910. It can be transmitted, transferred, delivered, stored, possessed etc. in the same way as any other movable property. Even in Benjamin on Sale, 8th Edn., reference has been made at page 171 to County of Durham Electrical, etc., Co. v Inland Revenue, Commrs., (1909) 3 KB 604 in which electric energy was assumed to be "goods". If there can be sale and purchase of electric energy like any other movable object we see no difficulty in holding that electric energy was intended to be covered by the definition of "goods" in the two Acts.If that had not been the case there was no necessity of specifically exempting sale of electric energy from the payment of sales tax by making a provision for it in the Schedules to the two Acts. It cannot be denied that the Electricity Board carried on principally the businesses of selling, supplying or distributing electric energy. It would therefore clearly fall within the meaning of the expression "dealer" in the two Acts.10. As regards steam there has been a good deal of argument on the question whether it is liable to be assessed to sales tax in the hands of the Electric Board. According to Mr. Shroff the electricity Board carried on the business of selling steam to the Nepa Mills and that this has lasted for a number of years. It has been submitted that simply because the Electricity Board does not have any profit motive in supplying steam it cannot escape payment of sales tax because the steam is nevertheless being sold as "goods". The High Court was of the view that the water which the Nepa Mills supplied free to the Electricity Board became the property of the Board and in return for this free supply the Board agreed to give steam to Nepa Mills at a rate based solely on the coal consumed in producing steam. The mills had also agreed to reimburse the Electricity Board for the loss sustained on account of the mills not taking the "full demand of steam". According to the High Court there was no contract for the sale of steam as such and it was only for the labour and cost involved in its supply to the mills. The High Court relied on the findings of the Tribunal on this point and held that the turnover in respect of steam was not taxable. The tribunal in its order dated June 16, 1966 referred to certain conditions of working arrangement which were reduced to writing but which had not been properly executed as a contract which showed that the mills were supplying water free and the Electricity Board was making a pro rata charge of conversion of water into steam. It seems to us that the High Court was right in coming to the conclusion, on the finding of the tribunal, that the real arrangement was for supplying steam on actual cost basis and in that sense it was more akin to a labour contract than to sale.11. Mr. Shroff has argued that the document which was relied upon by the tribunal could not be looked at as it was neither admissible in evidence nor had it been properly executed as a contract between the Electricity Board and the mills and in happened to be a mere draft of an agreement which was proposed to be entered into.It is too late for Mr. Shroff to take these objections because these should have been raised before the Tribunal and the High Court.12. It is stated in Halsburys Laws of England, III Edn. Vol. 34 , page 6 that "a contract of sale of goods must be distinguished from a contract for work and labour. The distinction is often a fine one.A contract of sale is a contract whose main object is the transfer of the property in, and the delivery of possession of, a chattel as a chattel to the buyer. Where the main object of work undertaken by the payee of the price is not the transfer of a chattel qua chattel, the contract is one for work and labour. It has been laid down by this court in Govt. of Andhra Pradesh v. Guntur Tobaccos Ltd., 16 STC 240 = (AIR 1965 SC 1396 ), that in business transactions the works contracts are frequently not recorded in writing meeting out all the covenants and conditions thereof, and the terms and incidents of the contracts have to be gathered from the evidence and attendant circumstances. The question in each case is one about the true agreement between the parties and the terms of the agreement must be deduced from a review of all attended circumstances.On the findings of the tribunal and the High Court we are of the opinion that the arrangement relating to supply of steam in return for the water supplied by the mills on payment of actual cost was not one of sale but was more in the nature of a works contract.
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6. The High Court went into a discussion from the point of view of mechanics relating to transmission of electric energy. It was of the view that electricity could not be regarded as an article or matter which could be possessed or moved or delivered. It relied on certain decisions and referred to Entries Nos. 53 and 54 in List II of Seventh Schedule to the Constitution and held that electricity did not fall within the meaning of "goods" in the two Acts and therefore the Electricity Board could not be held to be a "dealer" in respect of its activity of generation, distribution, sale and supply of electric energy.The reasoning which prevailed with the High Court was that a well-defined distinction existed between the sale or purchase of "goods" and consumption or sale of electricity otherwise there was no necessity of having Entry No. 53. But under Entry 53 taxes can be levied not only on sale of electricity but also on its consumption which could not probably have been done under Entry 54. It is difficult to derive much assistance from the aforesaid entries. What has essentially to be seen is whether electric energy is "goods" within the meaning of the relevant provisions of the two Acts. The definition in terms is very wide according to which "goods" means all kinds of movable property.Then certain items are specifically excluded or included and electric energy or electricity is not one of them. The term "movable property" when considered with reference to "goods" as defined for the purposes of sale tax cannot be taken in a narrow sense and merely because electric energy is not tangible or cannot be moved or touched like, for instance, a piece of wood or a book it cannot cease to be movable property when it has all the attributes of such property. It is needless to repeat that it is capable of abstraction, consumption and use which, if done dishonestly, should attract punishment under Sec. 39 ofthe Indian Electricity Act, 1910. It can be transmitted, transferred, delivered, stored, possessed etc. in the same way as any other movable property.As regards steam there has been a good deal of argument on the question whether it is liable to be assessed to sales tax in the hands of the Electric Board. According to Mr. Shroff the electricity Board carried on the business of selling steam to the Nepa Mills and that this has lasted for a number of years. It has been submitted that simply because the Electricity Board does not have any profit motive in supplying steam it cannot escape payment of sales tax because the steam is nevertheless being sold as "goods". The High Court was of the view that the water which the Nepa Mills supplied free to the Electricity Board became the property of the Board and in return for this free supply the Board agreed to give steam to Nepa Mills at a rate based solely on the coal consumed in producing steam. The mills had also agreed to reimburse the Electricity Board for the loss sustained on account of the mills not taking the "full demand of steam". According to the High Court there was no contract for the sale of steam as such and it was only for the labour and cost involved in its supply to the mills. The High Court relied on the findings of the Tribunal on this point and held that the turnover in respect of steam was not taxable. The tribunal in its order dated June 16, 1966 referred to certain conditions of working arrangement which were reduced to writing but which had not been properly executed as a contract which showed that the mills were supplying water free and the Electricity Board was making a pro rata charge of conversion of water into steam. It seems to us that the High Court was right in coming to the conclusion, on the finding of the tribunal, that the real arrangement was for supplying steam on actual cost basis and in that sense it was more akin to a labour contract than to sale.11. Mr. Shroff has argued that the document which was relied upon by the tribunal could not be looked at as it was neither admissible in evidence nor had it been properly executed as a contract between the Electricity Board and the mills and in happened to be a mere draft of an agreement which was proposed to be entered into.It is too late for Mr. Shroff to take these objections because these should have been raised before the Tribunal and the High Court.
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Calcutta Electric Supply Corporation Limited Vs. Calcutta Electric Supply Workers' Union & Others | were taken before the tribunals below as stated in the affidavit. That is why we cannot uphold Mr. Kumars objection at the appellant should not be allowed to raise those points before us.4. It is necessary first to deal with the scope of the reference. What transpired before the conciliation officer prior to the making of the reference does not appear on the record; andthere can be no doubt that in construing the terms of reference and in determining the scope and nature of the points referred to the industrial tribunal, we must look at the order of reference itself.All the other items except item 20 refer to industrial disputes between the appellant and its workmen. It is only item 20, medical aid, which it is urged refers not only to the employees but also to the members of their family. Mr. Kumar contended before us that there are several instances where industrial tribunals have directed the employers to provide medical aid to the members of their employees families subject to terms, and conditions specified by the said awards; and he argued that it is not unreasonable to suggest that the expression "medical aid" in the context would include a demand for medical aid to the members of the employees families.We are unable to accept this argument in the circumstances of the present case and having regard to the context of the dispute which led to the reference. The reference clearly shows that there were several items of dispute between the appellant and its employees; and the claim for medical aid which was included in the reference by the subsequent notification also appears to be by reference to the employees themselves.It is significant that one of the unions representing the appellants employees does not refer to this part of the claim even in its statement filed before the tribunal. It has made five demands under the item of medical aid all of which refer to the employees and none of which contemplates the members of the families of the employees. This would be evident from the statement filed by the Calcutta Electric Supply Corporation Mazdoor Union. The statement filed by the Calcutta Electric Supply Workers Union makes a two-fold demand under this item viz., that the present system of medical aid to work men should be broad-based and should be extended to their families; whereas the written statement filed on behalf of the Calcutta Electric Supply Corporation Ltd., Employees Association refers to free medical treatment for wife and children of middle-class employees. It would thus be noticed that there is no uniformity in the demands made by these two statements. It appears that the claim made by the respondents in regard to medical aid was really intended to make the relief afforded by the appellant to its employees more broad-base and that is illustrated by the five demands made in the statement filed by the Calcutta Electric Supply Corporation Ltd., Mazdoor Union.Having regard to the relevant facts available on the record of this case we do not think that it would be reasonable to hold that the item of medical aid which has been included in the reference is intended to cover anything beyond medical aid for the employees of the appellant. That being our view we must hold that on this reference it was not competent to the tribunals below to consider whether the employees were entitled to claim medical aid for the members of their families. This conclusion alone is enough to dispose of this appeal.5. As we have already pointed out, Mr. Kumar has drawn our attention to the fact that several awards have made similar provisions for medical relief of the employees families; he also emphasised the fact that whereas prior to the present award the liability of the appellant to give medical relief to its employees was in a sense unlimited it has now been limited to the extent of one months salary of each employee. In other words, his argument was that though an additional liability to provide for medical relief to the members of the workers families strictly so called has been imposed on the appellant, a ceiling has been placed on the said liability by directing that no employee can claim relief more than his one months salary. He has also drawn our attention to the fact that the appellate tribunal has specified that the said relief would be available only to the wife, unmarried daughters and minor sons of the respondents provided they are entirely dependant on them and lived with them. These are matters which would be relevant on the merits of the award. We propose to express no opinion on this aspect of the matter. We do not also propose to express any opinion on the question as to whether a demand for medical aid for the families of the employees can be said to constitute an industrial dispute under S. 2 (k) of the Industrial Disputes Act. If the respondents think that their claim for medical relief for the members of their families is legitimate and can properly become the subject-matter of an industrial dispute it is open to them to request the Government of West Bengal to refer the said question specifically or adjudication by an industrial tribunal; and if such a reference is made we have no doubt that it would be dealt with by the tribunal in the light of the contentions which parties may raise before it. It is true that such a dispute appears to have been referred to industrial adjudication in some cases and has in fact been recognised by awards; but we are not called upon to consider that aspect of the matter in the present appeal.In the result we must hold that the tribunals below exceeded their jurisdiction in entertaining a demand which was not the subject-matter of the reference. There can be no doubt that it is only the subject-matter of reference with which an industrial tribunal can deal. | 1[ds]3. There is no doubt that these objections have not, been considered either by the award of the tribunal or by the decision of the Labour Appellate Tribunal; but when the appellant applied for special leave to this Court it had filed an affidavit made by its lawyer Mr. Mullick in which it was specifically averred that these contentions had been urged before the Labour Appellate Tribunal and that even before the tribunal the latter point had been specificallyfacie there is considerable force in this argument; but on the other hand Mr. Kumar does not dispute the correctness of the statement made by Mr. Mullick in his affidavit filed in this Court; and so we must assume that the points were taken before the tribunals below as stated in the affidavit. That is why we cannot uphold Mr. Kumars objection at the appellant should not be allowed to raise those points beforeare unable to accept this argument in the circumstances of the present case and having regard to the context of the dispute which led to the reference. The reference clearly shows that there were several items of dispute between the appellant and its employees; and the claim for medical aid which was included in the reference by the subsequent notification also appears to be by reference to the employeesregard to the relevant facts available on the record of this case we do not think that it would be reasonable to hold that the item of medical aid which has been included in the reference is intended to cover anything beyond medical aid for the employees of the appellant. That being our view we must hold that on this reference it was not competent to the tribunals below to consider whether the employees were entitled to claim medical aid for the members of their families. This conclusion alone is enough to dispose of thisthe result we must hold that the tribunals below exceeded their jurisdiction in entertaining a demand which was not theof the reference. There can be no doubt that it is only theof reference with which an industrial tribunal can deal. | 1 | 1,613 | 370 | ### Instruction:
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were taken before the tribunals below as stated in the affidavit. That is why we cannot uphold Mr. Kumars objection at the appellant should not be allowed to raise those points before us.4. It is necessary first to deal with the scope of the reference. What transpired before the conciliation officer prior to the making of the reference does not appear on the record; andthere can be no doubt that in construing the terms of reference and in determining the scope and nature of the points referred to the industrial tribunal, we must look at the order of reference itself.All the other items except item 20 refer to industrial disputes between the appellant and its workmen. It is only item 20, medical aid, which it is urged refers not only to the employees but also to the members of their family. Mr. Kumar contended before us that there are several instances where industrial tribunals have directed the employers to provide medical aid to the members of their employees families subject to terms, and conditions specified by the said awards; and he argued that it is not unreasonable to suggest that the expression "medical aid" in the context would include a demand for medical aid to the members of the employees families.We are unable to accept this argument in the circumstances of the present case and having regard to the context of the dispute which led to the reference. The reference clearly shows that there were several items of dispute between the appellant and its employees; and the claim for medical aid which was included in the reference by the subsequent notification also appears to be by reference to the employees themselves.It is significant that one of the unions representing the appellants employees does not refer to this part of the claim even in its statement filed before the tribunal. It has made five demands under the item of medical aid all of which refer to the employees and none of which contemplates the members of the families of the employees. This would be evident from the statement filed by the Calcutta Electric Supply Corporation Mazdoor Union. The statement filed by the Calcutta Electric Supply Workers Union makes a two-fold demand under this item viz., that the present system of medical aid to work men should be broad-based and should be extended to their families; whereas the written statement filed on behalf of the Calcutta Electric Supply Corporation Ltd., Employees Association refers to free medical treatment for wife and children of middle-class employees. It would thus be noticed that there is no uniformity in the demands made by these two statements. It appears that the claim made by the respondents in regard to medical aid was really intended to make the relief afforded by the appellant to its employees more broad-base and that is illustrated by the five demands made in the statement filed by the Calcutta Electric Supply Corporation Ltd., Mazdoor Union.Having regard to the relevant facts available on the record of this case we do not think that it would be reasonable to hold that the item of medical aid which has been included in the reference is intended to cover anything beyond medical aid for the employees of the appellant. That being our view we must hold that on this reference it was not competent to the tribunals below to consider whether the employees were entitled to claim medical aid for the members of their families. This conclusion alone is enough to dispose of this appeal.5. As we have already pointed out, Mr. Kumar has drawn our attention to the fact that several awards have made similar provisions for medical relief of the employees families; he also emphasised the fact that whereas prior to the present award the liability of the appellant to give medical relief to its employees was in a sense unlimited it has now been limited to the extent of one months salary of each employee. In other words, his argument was that though an additional liability to provide for medical relief to the members of the workers families strictly so called has been imposed on the appellant, a ceiling has been placed on the said liability by directing that no employee can claim relief more than his one months salary. He has also drawn our attention to the fact that the appellate tribunal has specified that the said relief would be available only to the wife, unmarried daughters and minor sons of the respondents provided they are entirely dependant on them and lived with them. These are matters which would be relevant on the merits of the award. We propose to express no opinion on this aspect of the matter. We do not also propose to express any opinion on the question as to whether a demand for medical aid for the families of the employees can be said to constitute an industrial dispute under S. 2 (k) of the Industrial Disputes Act. If the respondents think that their claim for medical relief for the members of their families is legitimate and can properly become the subject-matter of an industrial dispute it is open to them to request the Government of West Bengal to refer the said question specifically or adjudication by an industrial tribunal; and if such a reference is made we have no doubt that it would be dealt with by the tribunal in the light of the contentions which parties may raise before it. It is true that such a dispute appears to have been referred to industrial adjudication in some cases and has in fact been recognised by awards; but we are not called upon to consider that aspect of the matter in the present appeal.In the result we must hold that the tribunals below exceeded their jurisdiction in entertaining a demand which was not the subject-matter of the reference. There can be no doubt that it is only the subject-matter of reference with which an industrial tribunal can deal.
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3. There is no doubt that these objections have not, been considered either by the award of the tribunal or by the decision of the Labour Appellate Tribunal; but when the appellant applied for special leave to this Court it had filed an affidavit made by its lawyer Mr. Mullick in which it was specifically averred that these contentions had been urged before the Labour Appellate Tribunal and that even before the tribunal the latter point had been specificallyfacie there is considerable force in this argument; but on the other hand Mr. Kumar does not dispute the correctness of the statement made by Mr. Mullick in his affidavit filed in this Court; and so we must assume that the points were taken before the tribunals below as stated in the affidavit. That is why we cannot uphold Mr. Kumars objection at the appellant should not be allowed to raise those points beforeare unable to accept this argument in the circumstances of the present case and having regard to the context of the dispute which led to the reference. The reference clearly shows that there were several items of dispute between the appellant and its employees; and the claim for medical aid which was included in the reference by the subsequent notification also appears to be by reference to the employeesregard to the relevant facts available on the record of this case we do not think that it would be reasonable to hold that the item of medical aid which has been included in the reference is intended to cover anything beyond medical aid for the employees of the appellant. That being our view we must hold that on this reference it was not competent to the tribunals below to consider whether the employees were entitled to claim medical aid for the members of their families. This conclusion alone is enough to dispose of thisthe result we must hold that the tribunals below exceeded their jurisdiction in entertaining a demand which was not theof the reference. There can be no doubt that it is only theof reference with which an industrial tribunal can deal.
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Ramanlal Gulab Chand Shah Etc Vs. State Of Gujarat & Ors., Etc | made out.Under clause (b) of Art. 31-A (1) protection is to State action in taking over management for a limited period and to laws enabling this to be done, but not to management unlimited in time. Section 61 read with S. 82 must therefore require that any rule made should accord with the protection given on these terms by Art. 31-A otherwise the protection will fail. Advantage of the words of S. 61 cannot be taken to create a permanent deprivation of the property and yet claim protection of Art. 31-A (1) (b). It is in this context that we must examine the provisions. 18. We must first clear one misapprehension and it is that the provisions of Chapter IV can be said to apply in toto. It must be remembered that that chapter is primarily concerned with the liquidation of liability of landholders and schemes to effect that purpose. Section 58 does not give a clean power of sale but only after a liquidation scheme is sanctioned. That applies to landholders and may not be made applicable to non-landholders. 19. To see how the management is to work in respect of non-landholders we have to turn to the rules. Here the pertinent rule is R. 35. That rule requires a report from the Manager after about a year to enable the State Government to consider whether it is necessary to continue management. The State Government may then decide to release the land from management, or continue it. The management may continue for periods of 5 years at a time on the strength of periodic reports but if management is to continue beyond 10 years a formal inquiry is necessary and then Government may decide to continue the management further. No limit of time is then indicated.There is, therefore, no limit set at all. The protection of Art. 31-A (1) (b) is available only when there is a definite limit in the law for the period of management. Neither S. 61 alone, nor read with the rules indicates any such limit and the condition of protection from Articles 13, 14, 19 and 31 is thus not available. The argument of the learned Attorney General that so long as there is a possibility of a return of the land to the original owner, we must construe the management as of a limited period is not acceptable to us. It is hardly to be expected that a return of property which is on the Greek Kalends can be construed as a return within a limited period. Therefore the scheme of the Act ought to have shown the limit. It may not be possible to question the unamended Section 65 because of Art. 31-B or the provisions of S. 61 which is also protected but in respect of the addition to S. 65 the protection of Art. 31-A (1) (b) can only be invoked if the law can show a real limit for the period of management. If the management is likely to continue for an indefinite period it is not in any sense limited and, therefore, the amended part cannot claim protection, S. 61 notwithstanding. 20. Once the matter can be gone into the provisions of the additional part will have to be examined for reasonableness. Here the difficulties are many for the State. We mention only a few of them. There is nothing to show what are the requirements of action. The deprivation of property is made to depend upon the subjective determination of an officer.Take for example this case itself. Action is taken under the impugned part of S. 65. Agriculture includes growing of grass, and other definitions emphasise the need of growing grass by including the operation in the word cultivation. Grass is as important for agricultural communities as foodgrains and fruits. Without the former the cattle must die just as without the latter there would be human starvation. The Act, therefore, gives importance to both, naming grass along with crops and garden produce and horticulture. If grass is being grown as an agricultural operation, one cannot just take grass lands and convert them into orchards. Similarly orchards cannot be taken and turned into pastures. Before action is taken it must be quite clearly, established that the kind of agriculture which is being carried on is being carried on inefficiently or that there is some distinct advantage in the new management to carry on the new kind of agriculture. The Deputy Collector merely, thinks that the land can grow grain or fruits.But so can any grass land or pasture. There is nothing to show that from an agrarian point of view grass grown in these lands was not necessary at all or was being inefficiently grown. A person is entitled to hold and enjoy his property as he thinks best. If regard is to be had for the benefits of society a clear law and a clear determination are required. Both the elements are missing. It is not said in what circumstances cultivation can be said to be inefficient. It is also not said what would be considered efficient cultivation and what inquiries are needed to determine this. It is also not said under what circumstances different kind of cultivation can be imposed upon the land. The law does not provide for an opportunity to the cultivator to change his cultivation from one kind to another. It does not even require that the management should be efficient. After taking over the lands the Manager can lease them to others but it is not stated what conditions they have to observe.Merely on the opinion of an officer, land may be taken away because the officer thinks that wheat is to be preferred to fruits and fruits to grass and so on and so forth. The management is taken over without any clear limit of time. In these circumstances it is difficult to uphold the declarations made in these cases or to give them the protection of Art. 31-A (1) (b). | 1[ds]It must be noticed that this definition does not take into account a tenant. That word is defined in Section 2 (18) and reads:Tenant means a person who holds land on lease and includes :(a) a person who is deemed to be tenant under Section 4;(b) a person who is protected tenant; and(c) a person who is permanent tenant:and the word landlord shall be construed accordingly.. The relevant sections in this chapter (which applies in this indirect manner to non-landholders lands) are Sections 44 to 48, 58, 59 and 61.11. Section 61 next provides for the termination of the management.The provisions though applicable to landholder are applied by S. 65 (2) mutatis mutandis to the lands of non-landholders In other words, tile scheme of the management (apart from liquidation of debts) applies to non-landholders.This matter has to be considered with reference to Arts. 31-A and 31-B read with the Ninth Schedule. The protection is claimed on the basis of these two articles by the State.Article 31-B no doubt gives protection to all statutes listed in Schedule IX of the Constitution and this Act is so listed. But it was listed before the amendment of S. 65 and that amendment cannot be said to have been considered when the Amendment of the Constitution was made. That Amendment if accepted as unassailable will have the indirect effect of amending the original Schedule IX by including something in it which was not there before. This is undoubtedly beyond the competence of any State legislature. The argument of the learned Attorney General that the general scheme of the Preamble and the provisions of S. 44 made applicable by S.65 (2) both of which have the protection of Art. 31-B must give protection is fallacious. Even if the preamble and S. 44 could be read (and we do not decide that they can be so read) to give validity it is clear that the preamble talked only of landholders and the addition of the words to S. 65 is intended to apply the principle to non-landholders. Similarly the provisions of S. 44 under the unamended Act, could not have been made applicable to such landholders. The amendment of S. 65 was really carrying the Act into new fields and not being considered as an amendment of the Constitution, how can it claim the protection given to the unamended Act ? Therefore Art. 31-B and the Ninth Schedule cannot be called in aid.14. The matter may, however, be considered under Art. 31-A. If Art. 31-A gives protection there would be an end to the appellants contention if not the matter must be considered on principles settled by this Court.The amendment of S. 65 gives additional power of taking over lands of non-landholders for management on two grounds.The first is that the land must have remained uncultivated for two consecutive years and the second is that full and efficient use of the land had not been made of the land. In so far as the first is concerned S. 65 in its original form included that condition and it cannot be challenged because of the protection of Art. 31-B read with the Ninth Schedule. Therefore action could be taken against any land which had remained uncultivated for two years. The action in this case is not taken because of this part of S. 65. But in so far as the second part is concerned the question must arise whether taking over of management can be said to be (a) acquisition by State or (b) extinguishment of the rights of the holder or (c) modification of any such rights. Of these it is impossible to say that this was an acquisition by the State.That phrase has received construction on more than one occasion in this Court. Although the decisions connot be said to be uniform, one thing is certain that the taking away must be for the State and by the State.Such acquisition must transfer the ownership of the property to the State or to a corporation owned or controlled by the State. Since S. 65 or the other provisions of the Act do not spell out any such thing, there is no acquisition by the State. There is also no extinguishment of the rights of the holder. The rights are merely suspended and he continues to be the owner. There can of course be extinguishment of rights without acquisition by the State but there must be extinguishment, that is complete termination of the rights. The scheme of the Act in S. 61 contemplates return of the lands unless sold to others and in those cases in which a sale is not affected it cannot be said that there is an extinguishment of the rights. Therefore that part of Art. 31-A (1) (a) does not apply. The third part namely modification of rights have been considered by us but this Court in Raghubir Singh v. Court of Wards, Ajmer, 1953 SCR 1049 = (AIR 1953 SC 373 ) gave a limited meaning to the expression and that case has been applied on many occasions.was observed there:The learned Attorney-General laid emphasis on the word modification used in Article 31-A. That word in the context of the article only means a modification of the proprietary right of a citizen like an extinguishment of that right and cannot include within its ambit a mere suspension of the right of management of estate for a time, definite or indefinite.emphasis (here in ) added)s mere suspension of the right of management of ones property without modification of the proprietary right was not held sufficient to give protection of Art. 31-A (1) (a). We would have given more thought to this matter but for the re-enactment of Art. 81-A with retrospective effect after Raghubir Singhs case, 1953 SCR 1049 = (AIR 1953 SC 373 ). Raghubir Singhs case, 1953 SCR 1049 = (AIR 1953 SC 373 ) did not interpret the article as it is today. In view of the retrospective amendment of the article it may be said that this Court interpreted an article which never was enacted in that form. Therefore the less we speak of the matter from the angle of observations in Raghubir Singhs case, 1953 SCR 1049 = (AIR 1953 SC 373 ) the better. But even so the matter is not advanced much further.15. Looking at the matter in the light of Art. 31-A as it is today (and it must be deemed to have been so always) management is specially provided in (b) and must be considered under that clause. The words of that clause are the taking over of the management of any property. Any property means property of any kind and would embrace land of landholders and non-landholders alike. The words by the State indicate that the taking over must be by the State. The next requirement is that this taking over must be either in the public interest or in order to secure the proper management of the property. And lastly the taking over must be for a limited period. The case here is covered by this clause and clause (a) is therefore not attracted16. It is, however, objected that the taking over is not limited to any period. S. 61 which is protected by the Ninth Schedule and cannot be called in question says that the State Government may announce the termination of the management when it is satisfied that it is not necessary. This does not set any limit leaving the matter at large.Although S. 61 may not by itself be challengeable, the rules may be, notwithstanding that they were made under powers given by S. 82.A limit of time was deliberately put in by the constitutional amendment to distinguish between cases which fall within management from those of extinguishment and modification. Without a limit of time the management would be an excuse for deprivation of property without compensation and that is not the intention of Art. 31. It is hardly to be thought that an antinomy between Art. 31 and 31-A (1) (b) was deliberately introduced.17. We do not express an opinion whether the rules can be read to indicate the limited period of management or that the scheme of the Act and the rules must be viewed together in this connection. But we are clear that the rules do not improve matters. Although it may not be possible to attack S. 61 which enables the State to hold the property as long as necessary as the section is protected, the action of the State in making such rules as give no indication of a limit of time may be a circumstance to consider if the claim of protection is made out.Under clause (b) of Art. 31-A (1) protection is to State action in taking over management for a limited period and to laws enabling this to be done, but not to management unlimited in time. Section 61 read with S. 82 must therefore require that any rule made should accord with the protection given on these terms by Art. 31-A otherwise the protection will fail. Advantage of the words of S. 61 cannot be taken to create a permanent deprivation of the property and yet claim protection of Art. 31-A (1) (b). It is in this context that we must examine the provisions.18. We must first clear one misapprehension and it is that the provisions of Chapter IV can be said to apply in toto. It must be remembered that that chapter is primarily concerned with the liquidation of liability of landholders and schemes to effect that purpose. Section 58 does not give a clean power of sale but only after a liquidation scheme is sanctioned. That applies to landholders and may not be made applicable to non-landholders.19. To see how the management is to work in respect of non-landholders we have to turn to the rules. Here the pertinent rule is R. 35. That rule requires a report from the Manager after about a year to enable the State Government to consider whether it is necessary to continue management. The State Government may then decide to release the land from management, or continue it. The management may continue for periods of 5 years at a time on the strength of periodic reports but if management is to continue beyond 10 years a formal inquiry is necessary and then Government may decide to continue the management further. No limit of time is then indicated.There is, therefore, no limit set at all. The protection of Art. 31-A (1) (b) is available only when there is a definite limit in the law for the period of management. Neither S. 61 alone, nor read with the rules indicates any such limit and the condition of protection from Articles 13, 14, 19 and 31 is thus not available.argument of the learned Attorney General that so long as there is a possibility of a return of the land to the original owner, we must construe the management as of a limited period is not acceptable to us. It is hardly to be expected that a return of property which is on the Greek Kalends can be construed as a return within a limited period. Therefore the scheme of the Act ought to have shown the limit. It may not be possible to question the unamended Section 65 because of Art. 31-B or the provisions of S. 61 which is also protected but in respect of the addition to S. 65 the protection of Art. 31-A (1) (b) can only be invoked if the law can show a real limit for the period of management. If the management is likely to continue for an indefinite period it is not in any sense limited and, therefore, the amended part cannot claim protection, S. 61 notwithstanding.Here the difficulties are many for the State. We mention only a few of them. There is nothing to show what are the requirements of action. The deprivation of property is made to depend upon the subjective determination of an officer.Take for example this case itself. Action is taken under the impugned part of S. 65. Agriculture includes growing of grass, and other definitions emphasise the need of growing grass by including the operation in the word cultivation. Grass is as important for agricultural communities as foodgrains and fruits. Without the former the cattle must die just as without the latter there would be human starvation. The Act, therefore, gives importance to both, naming grass along with crops and garden produce and horticulture. If grass is being grown as an agricultural operation, one cannot just take grass lands and convert them into orchards. Similarly orchards cannot be taken and turned into pastures. Before action is taken it must be quite clearly, established that the kind of agriculture which is being carried on is being carried on inefficiently or that there is some distinct advantage in the new management to carry on the new kind of agriculture. The Deputy Collector merely, thinks that the land can grow grain or fruits.But so can any grass land or pasture. There is nothing to show that from an agrarian point of view grass grown in these lands was not necessary at all or was being inefficiently grown. A person is entitled to hold and enjoy his property as he thinks best. If regard is to be had for the benefits of society a clear law and a clear determination are required. Both the elements are missing. It is not said in what circumstances cultivation can be said to be inefficient. It is also not said what would be considered efficient cultivation and what inquiries are needed to determine this. It is also not said under what circumstances different kind of cultivation can be imposed upon the land. The law does not provide for an opportunity to the cultivator to change his cultivation from one kind to another. It does not even require that the management should be efficient. After taking over the lands the Manager can lease them to others but it is not stated what conditions they have to observe.Merely on the opinion of an officer, land may be taken away because the officer thinks that wheat is to be preferred to fruits and fruits to grass and so on and so forth. The management is taken over without any clear limit of time. In these circumstances it is difficult to uphold the declarations made in these cases or to give them the protection of Art. 31-A (1) (b). | 1 | 6,585 | 2,667 | ### Instruction:
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made out.Under clause (b) of Art. 31-A (1) protection is to State action in taking over management for a limited period and to laws enabling this to be done, but not to management unlimited in time. Section 61 read with S. 82 must therefore require that any rule made should accord with the protection given on these terms by Art. 31-A otherwise the protection will fail. Advantage of the words of S. 61 cannot be taken to create a permanent deprivation of the property and yet claim protection of Art. 31-A (1) (b). It is in this context that we must examine the provisions. 18. We must first clear one misapprehension and it is that the provisions of Chapter IV can be said to apply in toto. It must be remembered that that chapter is primarily concerned with the liquidation of liability of landholders and schemes to effect that purpose. Section 58 does not give a clean power of sale but only after a liquidation scheme is sanctioned. That applies to landholders and may not be made applicable to non-landholders. 19. To see how the management is to work in respect of non-landholders we have to turn to the rules. Here the pertinent rule is R. 35. That rule requires a report from the Manager after about a year to enable the State Government to consider whether it is necessary to continue management. The State Government may then decide to release the land from management, or continue it. The management may continue for periods of 5 years at a time on the strength of periodic reports but if management is to continue beyond 10 years a formal inquiry is necessary and then Government may decide to continue the management further. No limit of time is then indicated.There is, therefore, no limit set at all. The protection of Art. 31-A (1) (b) is available only when there is a definite limit in the law for the period of management. Neither S. 61 alone, nor read with the rules indicates any such limit and the condition of protection from Articles 13, 14, 19 and 31 is thus not available. The argument of the learned Attorney General that so long as there is a possibility of a return of the land to the original owner, we must construe the management as of a limited period is not acceptable to us. It is hardly to be expected that a return of property which is on the Greek Kalends can be construed as a return within a limited period. Therefore the scheme of the Act ought to have shown the limit. It may not be possible to question the unamended Section 65 because of Art. 31-B or the provisions of S. 61 which is also protected but in respect of the addition to S. 65 the protection of Art. 31-A (1) (b) can only be invoked if the law can show a real limit for the period of management. If the management is likely to continue for an indefinite period it is not in any sense limited and, therefore, the amended part cannot claim protection, S. 61 notwithstanding. 20. Once the matter can be gone into the provisions of the additional part will have to be examined for reasonableness. Here the difficulties are many for the State. We mention only a few of them. There is nothing to show what are the requirements of action. The deprivation of property is made to depend upon the subjective determination of an officer.Take for example this case itself. Action is taken under the impugned part of S. 65. Agriculture includes growing of grass, and other definitions emphasise the need of growing grass by including the operation in the word cultivation. Grass is as important for agricultural communities as foodgrains and fruits. Without the former the cattle must die just as without the latter there would be human starvation. The Act, therefore, gives importance to both, naming grass along with crops and garden produce and horticulture. If grass is being grown as an agricultural operation, one cannot just take grass lands and convert them into orchards. Similarly orchards cannot be taken and turned into pastures. Before action is taken it must be quite clearly, established that the kind of agriculture which is being carried on is being carried on inefficiently or that there is some distinct advantage in the new management to carry on the new kind of agriculture. The Deputy Collector merely, thinks that the land can grow grain or fruits.But so can any grass land or pasture. There is nothing to show that from an agrarian point of view grass grown in these lands was not necessary at all or was being inefficiently grown. A person is entitled to hold and enjoy his property as he thinks best. If regard is to be had for the benefits of society a clear law and a clear determination are required. Both the elements are missing. It is not said in what circumstances cultivation can be said to be inefficient. It is also not said what would be considered efficient cultivation and what inquiries are needed to determine this. It is also not said under what circumstances different kind of cultivation can be imposed upon the land. The law does not provide for an opportunity to the cultivator to change his cultivation from one kind to another. It does not even require that the management should be efficient. After taking over the lands the Manager can lease them to others but it is not stated what conditions they have to observe.Merely on the opinion of an officer, land may be taken away because the officer thinks that wheat is to be preferred to fruits and fruits to grass and so on and so forth. The management is taken over without any clear limit of time. In these circumstances it is difficult to uphold the declarations made in these cases or to give them the protection of Art. 31-A (1) (b).
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State in making such rules as give no indication of a limit of time may be a circumstance to consider if the claim of protection is made out.Under clause (b) of Art. 31-A (1) protection is to State action in taking over management for a limited period and to laws enabling this to be done, but not to management unlimited in time. Section 61 read with S. 82 must therefore require that any rule made should accord with the protection given on these terms by Art. 31-A otherwise the protection will fail. Advantage of the words of S. 61 cannot be taken to create a permanent deprivation of the property and yet claim protection of Art. 31-A (1) (b). It is in this context that we must examine the provisions.18. We must first clear one misapprehension and it is that the provisions of Chapter IV can be said to apply in toto. It must be remembered that that chapter is primarily concerned with the liquidation of liability of landholders and schemes to effect that purpose. Section 58 does not give a clean power of sale but only after a liquidation scheme is sanctioned. That applies to landholders and may not be made applicable to non-landholders.19. To see how the management is to work in respect of non-landholders we have to turn to the rules. Here the pertinent rule is R. 35. That rule requires a report from the Manager after about a year to enable the State Government to consider whether it is necessary to continue management. The State Government may then decide to release the land from management, or continue it. The management may continue for periods of 5 years at a time on the strength of periodic reports but if management is to continue beyond 10 years a formal inquiry is necessary and then Government may decide to continue the management further. No limit of time is then indicated.There is, therefore, no limit set at all. The protection of Art. 31-A (1) (b) is available only when there is a definite limit in the law for the period of management. Neither S. 61 alone, nor read with the rules indicates any such limit and the condition of protection from Articles 13, 14, 19 and 31 is thus not available.argument of the learned Attorney General that so long as there is a possibility of a return of the land to the original owner, we must construe the management as of a limited period is not acceptable to us. It is hardly to be expected that a return of property which is on the Greek Kalends can be construed as a return within a limited period. Therefore the scheme of the Act ought to have shown the limit. It may not be possible to question the unamended Section 65 because of Art. 31-B or the provisions of S. 61 which is also protected but in respect of the addition to S. 65 the protection of Art. 31-A (1) (b) can only be invoked if the law can show a real limit for the period of management. If the management is likely to continue for an indefinite period it is not in any sense limited and, therefore, the amended part cannot claim protection, S. 61 notwithstanding.Here the difficulties are many for the State. We mention only a few of them. There is nothing to show what are the requirements of action. The deprivation of property is made to depend upon the subjective determination of an officer.Take for example this case itself. Action is taken under the impugned part of S. 65. Agriculture includes growing of grass, and other definitions emphasise the need of growing grass by including the operation in the word cultivation. Grass is as important for agricultural communities as foodgrains and fruits. Without the former the cattle must die just as without the latter there would be human starvation. The Act, therefore, gives importance to both, naming grass along with crops and garden produce and horticulture. If grass is being grown as an agricultural operation, one cannot just take grass lands and convert them into orchards. Similarly orchards cannot be taken and turned into pastures. Before action is taken it must be quite clearly, established that the kind of agriculture which is being carried on is being carried on inefficiently or that there is some distinct advantage in the new management to carry on the new kind of agriculture. The Deputy Collector merely, thinks that the land can grow grain or fruits.But so can any grass land or pasture. There is nothing to show that from an agrarian point of view grass grown in these lands was not necessary at all or was being inefficiently grown. A person is entitled to hold and enjoy his property as he thinks best. If regard is to be had for the benefits of society a clear law and a clear determination are required. Both the elements are missing. It is not said in what circumstances cultivation can be said to be inefficient. It is also not said what would be considered efficient cultivation and what inquiries are needed to determine this. It is also not said under what circumstances different kind of cultivation can be imposed upon the land. The law does not provide for an opportunity to the cultivator to change his cultivation from one kind to another. It does not even require that the management should be efficient. After taking over the lands the Manager can lease them to others but it is not stated what conditions they have to observe.Merely on the opinion of an officer, land may be taken away because the officer thinks that wheat is to be preferred to fruits and fruits to grass and so on and so forth. The management is taken over without any clear limit of time. In these circumstances it is difficult to uphold the declarations made in these cases or to give them the protection of Art. 31-A (1) (b).
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Bombay Dyeing &Manufacturing Co., Ltd Vs. The State Of Bombay And Others | abandoned and the Banks were to transfer them to the State. Claims to the deposits might be made to the Commissioner of Revenue, who was to determine on their validity, his decision being open to review by the Courts. The validity of this law was questioned on the ground that the sufficient opportunity had not been given to the depositors to claim the deposits, and that as they could attack the law as unconstitutional, the Bank got no protection by payment to the State. In repelling this contention, the Supreme Court observed that the Act did not deprive the depositors of any of their rights, they being given ample opportunity to establish their rights, and that it merely substituted the State in the place of the Bank as their debtor. The Court also held that it was "with the Constitutional power of the State to protect the interests of depositors from the risks which attend long neglected accounts, by taking them into custody when they have been inactive, so long as to be presumptively abandoned." In Connecticut Mutual Life Insurance Co. v. Moore (U) (supra), the law was with reference to moneys payable on life insurance policies, which had matured. It provided that if those amounts had remained unclaimed for a period of seven years, then it had to be advertised by the companies in the manner provided therein, and if no claims were preferred thereafter, the amounts were to be paid to the State Comptroller for care and custody. In holding that the law was valid, the Court observed: "There is ample provision for notice to beneficiaries and for administrative and judicial hearing of their claims and payment of same. There is no possible injury to any beneficiary." 31. In Standard Oil Co. v. New Jeresey, (1950) 341 US 428: 95 Law Ed 1078 (W), the law related to shares and unpaid dividends, and provided for the State taking them over, if they remained unclaimed for a period of 14 years. There was a provision for notice to the unknown owners by advertisement. It was held following Connecticut Mutual Life Insurance Co. v. Moore (U) (supra), that the law was valid. 32.In the light of the above discussion, there cannot be any reasonable doubt that the impugned Act cannot be regarded as one relating to abandoned property.The period of three years mentioned in S. 2 (10) of the Act is merely the period of limitation mentioned in Art. 102 of the Limitation Act, and even taking into account the class of persons whose claims are dealt with in the Act, as counsel for respondents would have us do, the period cannot be regarded as adequate for raising a presumption as to abandonment. A more serious objection to viewing the legislation as one relating to abandoned claims is that there is no provision made in the Act for investigating the claims of the employees or for payment of the amounts due to them, if they established their claims.The purpose of a legislation with respect to abandoned property being, in the first instance, to safeguard the property for the benefit of the true owner and the State taking it over only in the absence of such claims, a law which vests the property absolutely in the State without regard to the claims of the true owners cannot be considered as one relating to abandoned property.This contention of the respondents must also be rejected. 33. In the result, we are of opinion that S. 3 (1) in the so far as it relates to unpaid accumulations in S. 3 (2) (b) is unconstitutional and void. 34. We have now to deal with the question as to the validity of S. 3 (1) and S. 3 (2) (a) of the Act, which require the employers to hand over to the Board the fines realised from the employees. So far as this item is concerned, the position of the employers is wholly different from what it is as regards unpaid accumulations. Section 8 of the Wages Act deals with the question of fines which could be imposed by the employer, and it provides that they should be entered in a separate register, and applied for the benefit of his employees. It is not denied by the appellant that under this provision the fines are constituted a trust fund and that the employers are bare trustees in respect of such fund. Now, the grievance of the appellant is that the Act deprives it of its rights as trustees, and vests them in the Board, and that, further while the beneficiaries under S. 8 of the Wages Act are its own employees, under S. 5 (2) of the impugned Act they include other persons as well. There might have been substance in the complaint that the appellant had been deprived of its rights as trustee if it had any beneficial interest in the Fund. But admittedly, it has none, and it is therefore difficult to hold that there has been such substantial deprivation of property, as will offend Art. 31 (2) according to the decisions in State of West Bengal v. Subodh, Gopal (A) and Dwarkadas Shriniwas of Bombay v. Sholapur Spinning and Weaving Co. Ltd. (B), (supra) or such unreasonable interference with rights to property, as will infringe Art. 19 (1) (f).It is argued with some emphasis that in enlarging the circle of beneficiaries, the Act has encroached on the rights of the employees of the appellant. But then, the trust is the creation not of the appellant but of the Legislature, which gave the employees certain rights which they did not have before, and what it can give, it can also take away or modify, and we do not see how the employers are aggrieved by it. We are of opinion that no valid grounds exist on which S. 3 (1) and S. 3 (2) (a) of the impugned Act could be attacked as unconstitutional, and they must accordingly be held to be valid. | 1[ds]Now, money is undoubtedly property, and it cannot be disputed that a person who has money does not cease to be its owner merely by reason of the fact that he owes debts in satisfaction of which it may have to be applied. Until the creditor takes appropriate proceedings under the law for the realisation of his debt and the title of the debtor is extinguished in those proceedings, the title to the property continues in the debtor. Mr. Kolah is therefore clearly right in his contention that the liability of the appellant to pay wages to the employees does not ipso facto extinguish its title to the moneys belonging to it even pro tanto, and that the effect, therefore, of S. 3 (1) is to take away money belonging to it10. On these decisions, it should follow that S. 3 of the impugned Act is bad as infringing Art. 31 (2), in that it deprives the appellant of its moneys without giving any compensationBut it is not disputed that this provision has no retrospective operation, and that the rights of the parties must be decided in accordance with the law as on the date of the writ application, and that on the provisions of the Constitution as they stood on that date and as interpreted in The State of West Bengal v. Subodh Gopal (A) (supra) and Dwarkadas Shriniwas of Bombay v. The Sholapur Spinning and Weaving Co. Ltd. (B) (supra), S. 3 (1) of the impugned Act would be obnoxious to Art. 31 (2). This should be sufficient to conclude this question in favour of the appellant, but the respondents contend that S. 3 (1) is not within the prohibition of Art. 31 (2), because it operates only on money, and money is not property for purposes of that ArticleBut it is not disputed that this provision has no retrospective operation, and that the rights of the parties must be decided in accordance with the law as on the date of the writ application, and that on the provisions of the Constitution as they stood on that date and as interpreted in The State of West Bengal v. Subodh Gopal (A) (supra) and Dwarkadas Shriniwas of Bombay v. The Sholapur Spinning and Weaving Co. Ltd. (B) (supra), S. 3 (1) of the impugned Act would be obnoxious to Art. 31 (2). This should be sufficient to conclude this question in favour of the appellant, but the respondents contend that S. 3 (1) is not within the prohibition of Art. 31 (2), because it operates only on money, and money is not property for purposes of that Article11. There is considerable authority in America that the power of eminent domain does not extend to the taking of money, the reason being that compensation which is to be paid in respect of money can only be money, and that, therefore, in substance it is a forced loan. In The State of Bihar v. Kameshwar Singh, 1952 SCR 889 : (AIR 1952 SC 252 ) (C), this view was adopted by Mahajan J., at pp. 943-944 (of SCR) : (p. 275 of AIR), by Mukherjea J., at p. 961 (of SCR): (p. 280 of AIR), and by Chandrasekhara Aiyar, J., at pp. 1015 to 1018 (of SCR): (pp. 295, 296 of AIR).It is arguedfor the respondents that the position under Art. 31 (2) is the same as in America, as the provision therein that either the amount of the compensation should be fixed or the principles on which and the manner in which compensation is to be determined should be specified, involves that what is taken is not moneyIt was argued that a law authorising the State to seize and destroy diseased cattle, noxious drugs and the like, could not be brought within Art. 19 (5) if the word restriction was to be narrowly construed, and that accordingly the power to restrict must be held to include, in appropriate cases, the power to prohibit the exercise of the right. That view does find support in the observations of Lord Porter in Commonwealth of Australia v. Bank of New South Wales, 1950 AC 235 at p. 311 (E); but the present legislation cannot be sustained even on the above interpretation of the word restriction, as S. 3 (1) of the Act deals with moneys and money cannot be likened to diseased cattle or noxious drugs so as to attract the exercise of police power under Art. 19 (5). It appears to us that whether we apply Art. 31 (2) or Art. 19 (5), the impugned Act cannot be upheld, and it must be struck down, unless we accept the other contentions which have been urged for the respondents in support of its validity. Those contentions are firstly, that the Act merely substitutes the Board as the creditor in the place of t he employees, and that Ss. 3 and 17 merely prescribe the mode in which the obligation is to be enforced and - that was the ground on which Chagla C. J., based his judgment; and secondly, that the impugned legislation is one in respect of abandoned property, and it is not open to attack as contravening either Art. 19 (1) (f) or Art. 31 (2)When an employee has done his work, the amount of wages earned by him becomes a debt due to him from the employer, and it is property which could be assigned under the law. If the employee had assigned the debt to the Board constituted under the Act, the latter would be entitled to recover it from the employer. And what could be done by act of parties can also be done by legislation. What we have to see, therefore, is whether on the provisions of the statute it could be held that there is a statutory transfer of the wages earned by the workman to the Board. Section 5 of the Act vests the amounts mentioned in S. 3 (2) in the Board, and S. 3 (1) directs that those amounts should be paid by the employer to the Board. Counsel for the appellant contends that there are in the Act no words of transfer of the debts to the Board, and that there is only a provision for payment of the amounts. But this is taking too narrow a view of the true scope of those provisions. Looking at the substance of the matter, we are of opinion that S. 3 (1) and S. 5 (1) do operate to transfer the debts due to the employees, to the Board14. It will be observed that the definition of "unpaid accumulations" takes in only payments due to the employees remaining unpaid within a period of three years after they become due. The intention of the Legislature obviously was that claims of the employees which are within time should be left to be enforced by them in the ordinary course of law, and that it is only when they become time-barred and useless to them that the State should step in and take them overNow, it is the settled law of this country that the statute of Limitation only bars the remedy but does not extinguish the debt.15. The position then is that under the law a debt subsists notwithstanding that its recovery is barred by limitation, and no argument has been addressed to us by the appellant that the transfer of such a debt is invalid; and indeed it could not be, in view of the provisions in the impugned Act, which release the debts due to the employees from the bar of limitation. Section 3 (1) provides that payment shall be made of the amounts specified in sub-cl. (2) "notwithstanding anything contained in any other law for the time being in force". A similar provision is again enacted in the second proviso to sub-s. (2) of S. 5 that "unpaid accumulations" and fines shall be paid to the Board "notwithstanding anything contained in the Payment of Wages Act, 1936, or any other law for the time being in force". One of those laws is the law of limitation, and the effect of these provisions is to suspend limitation in respect of the claims to which S. 3 (2) relates. To dispel any doubt as to whether it was competent to the Legislature of the Bombay State to modify the provisions of the Limitation Act, it should be stated that limitation is a topic enumerated in the Concurrent List, being Entry 13 in List III in Seventh Schedule to the Constitution, and under Art. 254 (2), the Stage Legislature can enact a law modifying the Central Act, provided it is reserved for consideration by the President and assented to by him, and that has been done in the present case. Cto the impugned Act, there is one other provision therein to which reference must be made, Section 17 provides that without prejudice to other modes of recovery, the sums payable to the fund under S. 3 may be recovered as arrears of land revenueOn the above analysis, there cannot be any doubt that the effect of the relevant provisions of the Act is to transfer to the Board the debts due by the appellant to its employees free from the bar of limitationThis argument rests on the supposition that so far as unpaid wages are concerned, the operation of the Wages Act is co-extensive with that of the impugned Act. But that clearly is erroneous. It is true that wages as defined in the Wages Act would include whatever are wages under the impugned Act. But S. 1 (6) limits the application of the Wages Act to wages which are below Rs. 200 for a wage period. In respect of wages of Rs. 200 or more, it is the general law that would apply, and the period of limitation is not one year under S. 15 of the Wages Act but three years under Art. 102 of the Limitation Act, which period is capable of extension under the provisions of the Limitation Act beyond the three years mentioned in S. 2 (10) of the impugned Act. Then, it is to be noted that under the proviso to S. 15 (1), the authority has the power to admit a petition even beyond the period mentioned there, if sufficient cause is shown therefor. To this, the reply of the respondents is that as on the terms of S. 3 (1) and the second proviso to S. 5 (2) they are to take effect notwithstanding anything contained in the Wages Act or any other law, they override the power conferred by the proviso to S. 15 (1) of the Wages Act or the provisions of the Limitation Act20. Even as regards S. 22 of the Wages Act, there is divergence of judicial opinion as to its true scope. In Simpalax Manufacturing Co. Ltd. v. Alla-Ud-Din, AIR 1945 Lah 195 (L), it was held that if there was any bona fide dispute as to the amount payable, the jurisdiction of the Civil Court was not barred by S. 22, On the other hand, it was held in Bhagwat Rai v. Union of India, ILR (1953) Nag 433: (AIR 1953 Nag 136) (M), that the jurisdiction of the Civil Court would be barred, even if there was a bona fide dispute, and that the bar under S. 22 (d) was absolute, and certain observations in Modern Mills Ltd. v. Mangalvedhekar, AIR 1950 Bom 342 (N) and A. R. Sarin v. B. C. Patil, AIR 1951 Bom 423 (O), were relied on, as supporting this contention. Even if Mr. Seervai is right in his contention that the law is correctly laid down in Bhagwat Rai v. Union of India (M), and that the decision in Simpalax Manufacturing Co. Ltd. v. Alla-Ud-Din (L), is wrong, the fact remains that claims in respect of unpaid wages to which the impugned Act applies must, in view of S. 1 (6) of the Wages Act, fall at least in part outside the purview of that Act, and the protection afforded by S. 15 of that Act will not be available with reference thereto22. The impugned Act, it should be noted, merely enacts that all unpaid accumulations should be paid to the Board. It makes no distinction between claims for unpaid wages which are barred by limitation and those which are not so barred23. It has been already mentioned that when a debt becomes time-barred, it does not become extinguished but only unenforceable in a Court of law. Indeed, it is on that footing that there can be a statutory transfer of the debts due to the employees, and that is how the Board gets title to them. If then a debt subsists even after it is barred by limitation, the employer does not get, in law, a discharge therefrom. The modes in which an obligation under a contract becomes discharged are well-defined, and the bar of limitation is not one of themhe following passages in Ansons Law of Contract, 19th Edition, page 383, are directly in point:"At common Law lapse of time does not affect contractual rights. Such a right is of a permanent and indestructible character, unless either from the nature of the contract, or from its terms, it be limited in point of durationBut though the right possesses this permanent character, the remedies arising from its violation are withdrawn after a certain lapse of time; interest reipublicae ut si finis litium. The remedies are barred, though the right is not extinguished."And if the law requires that a debtor should get a discharge before he can be compelled to pay, that requirement is not satisfied if he is merely told that in the normal course he is not likely to be exposed to action by the creditor24. That this distinction is not purely academical but is of practical importance will be seen, when regard is had to the provisions of the Industrial Disputes Act. Under that act, there is no period of limitation prescribed for referring a dispute for adjudication by a tribunalEven when a claim for wages falls within the purview of the Wages Act and an application under S. 15 of that Act would be barred it can nevertheless give rise to an industrial dispute in respect of which action can be taken under the provisions of the Industrial Disputes Act. It was held by the Federal Court in Shamnugger Jute Factory Co. Ltd. (North) v. S. N. Modak, 1949 FCR 365: (AIR 1949 FC 150( S), that S. 22 (d) of the Wages Act did not take away the power of the authorities to refer to a tribunal set up under the Industrial Disputes Act a claim which could be made under the Wages Act, as that section had application only to suits and did not exclude other proceedings permitted by law for the enforcement of payment. If a tribunal appointed under that Act can direct an employer to make payment of wages, it follows that the bar under S. 15 of the Wages Act does not give an absolute protection to the employer,and the same consequence must follow when the bar of limitation arises under the Limitation Act. The result therefore is that when an employer makes a payment under S. 3 (1) of the Act he gets no discharge from his obligation to the employees, even when the enforcement thereof is barred by limitationWe are not satisfied that the performance of the contract of service has been rendered impossible by reason of S. 3 (1) of the impugned Act. But assuming that that is the position, what follows?.The matter would then be governed by S. 65 of the Contract Act, which provides that when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it or to make compensation for it to the person from whom he received it.Under this section, the employer is liable to make compensation to the employee for the work done by him, and that liability can be enforced against him in spite of the fact that he has paid the unclaimed wages to the Board under S. 3 (1) of the Act. We are therefore of opinion that even if the matter is governed by S. 56 of the Contract Act, the employer is no more discharged than by the operation of the bar of limitation under S. 15 of the Wages Act, or the provisions of the Limitation Act. In this view, it must be held that the provisions of the impugned Act are unconstitutional, in that they take away the property of the appellant in violation of either Art. 19 (1) (f) or Art. 31 (2) of the ConstitutionNow, as the Act takes over the rights of the employees in respect of wages due to them even when they are not barred without making any provision for compensation of the same to them, it must at least to that extent be held to be unconstitutional, whether as contravening Art. 19 (1) (f) or Art. 31 (2) it is unnecessary to decide28. It is then argued that this is an objection open only to the employees, and that the appellant can make no grievance of it.It is no doubt true that a question as to the constitutionality of a statute can be raised only by a person who is aggrieved by it; but here, the statute deals with rights arising out of contract, and that presupposes the existence of at least two parties with mutual rights and obligations, and it is difficult to see how when the rights of one party to it are interfered with, those of the other can remain unaffected by it.Let us assume that the appellant makes a payment to the Board under S. 3 (1) of the impugned Act on the footing that the law is not unconstitutional as against him. What is there to prevent the employee from suing to recover the same amount from the appellant on the ground that the Act is unconstitutional? It will be no answer to that claim to plead that the appellant has already paid the amount to the Board.The fact is that a statute which operates on a contract must affect the rights of all the parties to the contract, and if it is bad as regards one of them, it should be held to be bad as regards the others as well.It is unnecessary to pursue this question further, as we have held that the Act is unconstitutional even as regards the appellant29. It remains to deal with the contention of the respondents that the impugned legislation is, in substance, one in respect of abandoned property, and that, by its very nature, it cannot be held to violate the rights of any person either under Art. 19 (1) (f) or Art. 31 (2). That would be the correct position if the character of the legislation is what the respondents claim it to be, for it is only a person who has some interest in property that can complain that the impugned legislation invades that right whether it be under Art. 19 (1) (f) or Art. 31 (2), and if it is abandoned property, ex hypothesis there is no one who has any interest in it. But can the impugned Act be held to be legislation with respect to abandoned property?There is, however, this distinction between the two classes of property that while the State becomes the owner of the properties of a person who dies intestate as his ultimate heir, it merely takes possession of property which is abandoned.At common law, abandoned personal property could not be the subject of escheat. It could only be appropriated by the Sovereign as bona vacantia. Vide Holdsworths History of English Law, Second Edition, Vol. 7, pages 495-496. In Connecticut Mutual Life Insurance co. v. Moore, (1947) 333 US 541 at p. 546: 92 Law Ed 863 at p. 869 (U),the-principle behind the law was stated to be that "the State may, more properly, be custodian and beneficiary of abandoned property than any other person."Consistently with the principle stated above, a law relating to abandoned property enacts firstly provisions for the State conserving and safeguarding for the benefit of the true owners property in respect of which no claim is made for a specified and reasonable period, and secondly, for those properties vesting in the State absolutely when no claim is made with reference thereto by the true owners within a time limited32.In the light of the above discussion, there cannot be any reasonable doubt that the impugned Act cannot be regarded as one relating to abandoned property.The period of three years mentioned in S. 2 (10) of the Act is merely the period of limitation mentioned in Art. 102 of the Limitation Act, and even taking into account the class of persons whose claims are dealt with in the Act, as counsel for respondents would have us do, the period cannot be regarded as adequate for raising a presumption as to abandonment. A more serious objection to viewing the legislation as one relating to abandoned claims is that there is no provision made in the Act for investigating the claims of the employees or for payment of the amounts due to them, if they established their claims.The purpose of a legislation with respect to abandoned property being, in the first instance, to safeguard the property for the benefit of the true owner and the State taking it over only in the absence of such claims, a law which vests the property absolutely in the State without regard to the claims of the true owners cannot be considered as one relating to abandoned property.This contention of the respondents must also be rejected33. In the result, we are of opinion that S. 3 (1) in the so far as it relates to unpaid accumulations in S. 3 (2) (b) is unconstitutional and voidSo far as this item is concerned, the position of the employers is wholly different from what it is as regards unpaid accumulations. Section 8 of the Wages Act deals with the question of fines which could be imposed by the employer, and it provides that they should be entered in a separate register, and applied for the benefit of his employees. It is not denied by the appellant that under this provision the fines are constituted a trust fund and that the employers are bare trustees in respect of such fund. Now, the grievance of the appellant is that the Act deprives it of its rights as trustees, and vests them in the Board, and that, further while the beneficiaries under S. 8 of the Wages Act are its own employees, under S. 5 (2) of the impugned Act they include other persons as well. There might have been substance in the complaint that the appellant had been deprived of its rights as trustee if it had any beneficial interest in the Fund. But admittedly, it has none, and it is therefore difficult to hold that there has been such substantial deprivation of property, as will offend Art. 31 (2) according to the decisions in State of West Bengal v. Subodh, Gopal (A) and Dwarkadas Shriniwas of Bombay v. Sholapur Spinning and Weaving Co. Ltd. (B), (supra) or such unreasonable interference with rights to property, as will infringe Art. 19 (1)t is arguedwith some emphasis that in enlarging the circle of beneficiaries, the Act has encroached on the rights of the employees of the appellant. But then, the trust is the creation not of the appellant but of the Legislature, which gave the employees certain rights which they did not have before, and what it can give, it can also take away or modify, and we do not see how the employers are aggrieved by it. We are of opinion that no valid grounds exist on which S. 3 (1) and S. 3 (2) (a) of the impugned Act could be attacked as unconstitutional, and they must accordingly be held to be valid9. Subsequent to this decision, this Court had occasion to consider the true scope of Art. 31 (2) in relation to Art. 31 (1) in The State of West Bengal v. Subodh Gopal, 1954 SCR 587 : (AIR 1954 SC 92 ) (A) and in Dwarkadas Shrinivas of Bombay v. The Sholapur Spinning and Weaving Co. Ltd., 1954 SCR 674 : (AIR 1954 SC 119 ) (B). In The State of West Bengal v. Subodh Gopal (A) (supra), the majority of the learned Judges took the view that Arts. 31 (1) and 31 (2) were not mutually exclusive, that it was not an essential requisite of acquisition under Art. 31 (2) that there should be a transfer of title to the State, that deprivation of property and substantial abridgement of the rights of the owner were also within Art. 31 (2), and that a law which produced those results must, in order to be valid, satisfy the conditions laid down in that Article. Das J., (as he then was) differed from this view, and held that the contents of the two provisions were distinct, that while Art. 31 (1) had reference to the "police power" of the State, Art. 31 (2) dealt with the power of "eminent domain". In Dwarkadas Shrinivas of Bombay v. The Sholapur Spinning and Weaving Co. Ltd. (B) (supra), the majority of the Judges again reiterated the view expressed in The State of West Bengal v. Subodh Gopal Bose (A) (supra) that Arts. 31 (1) and 31 (2) covered the same ground, and that substantial interference with rights to property would be within the operation of Art. 31 (2). | 1 | 11,157 | 4,915 | ### Instruction:
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abandoned and the Banks were to transfer them to the State. Claims to the deposits might be made to the Commissioner of Revenue, who was to determine on their validity, his decision being open to review by the Courts. The validity of this law was questioned on the ground that the sufficient opportunity had not been given to the depositors to claim the deposits, and that as they could attack the law as unconstitutional, the Bank got no protection by payment to the State. In repelling this contention, the Supreme Court observed that the Act did not deprive the depositors of any of their rights, they being given ample opportunity to establish their rights, and that it merely substituted the State in the place of the Bank as their debtor. The Court also held that it was "with the Constitutional power of the State to protect the interests of depositors from the risks which attend long neglected accounts, by taking them into custody when they have been inactive, so long as to be presumptively abandoned." In Connecticut Mutual Life Insurance Co. v. Moore (U) (supra), the law was with reference to moneys payable on life insurance policies, which had matured. It provided that if those amounts had remained unclaimed for a period of seven years, then it had to be advertised by the companies in the manner provided therein, and if no claims were preferred thereafter, the amounts were to be paid to the State Comptroller for care and custody. In holding that the law was valid, the Court observed: "There is ample provision for notice to beneficiaries and for administrative and judicial hearing of their claims and payment of same. There is no possible injury to any beneficiary." 31. In Standard Oil Co. v. New Jeresey, (1950) 341 US 428: 95 Law Ed 1078 (W), the law related to shares and unpaid dividends, and provided for the State taking them over, if they remained unclaimed for a period of 14 years. There was a provision for notice to the unknown owners by advertisement. It was held following Connecticut Mutual Life Insurance Co. v. Moore (U) (supra), that the law was valid. 32.In the light of the above discussion, there cannot be any reasonable doubt that the impugned Act cannot be regarded as one relating to abandoned property.The period of three years mentioned in S. 2 (10) of the Act is merely the period of limitation mentioned in Art. 102 of the Limitation Act, and even taking into account the class of persons whose claims are dealt with in the Act, as counsel for respondents would have us do, the period cannot be regarded as adequate for raising a presumption as to abandonment. A more serious objection to viewing the legislation as one relating to abandoned claims is that there is no provision made in the Act for investigating the claims of the employees or for payment of the amounts due to them, if they established their claims.The purpose of a legislation with respect to abandoned property being, in the first instance, to safeguard the property for the benefit of the true owner and the State taking it over only in the absence of such claims, a law which vests the property absolutely in the State without regard to the claims of the true owners cannot be considered as one relating to abandoned property.This contention of the respondents must also be rejected. 33. In the result, we are of opinion that S. 3 (1) in the so far as it relates to unpaid accumulations in S. 3 (2) (b) is unconstitutional and void. 34. We have now to deal with the question as to the validity of S. 3 (1) and S. 3 (2) (a) of the Act, which require the employers to hand over to the Board the fines realised from the employees. So far as this item is concerned, the position of the employers is wholly different from what it is as regards unpaid accumulations. Section 8 of the Wages Act deals with the question of fines which could be imposed by the employer, and it provides that they should be entered in a separate register, and applied for the benefit of his employees. It is not denied by the appellant that under this provision the fines are constituted a trust fund and that the employers are bare trustees in respect of such fund. Now, the grievance of the appellant is that the Act deprives it of its rights as trustees, and vests them in the Board, and that, further while the beneficiaries under S. 8 of the Wages Act are its own employees, under S. 5 (2) of the impugned Act they include other persons as well. There might have been substance in the complaint that the appellant had been deprived of its rights as trustee if it had any beneficial interest in the Fund. But admittedly, it has none, and it is therefore difficult to hold that there has been such substantial deprivation of property, as will offend Art. 31 (2) according to the decisions in State of West Bengal v. Subodh, Gopal (A) and Dwarkadas Shriniwas of Bombay v. Sholapur Spinning and Weaving Co. Ltd. (B), (supra) or such unreasonable interference with rights to property, as will infringe Art. 19 (1) (f).It is argued with some emphasis that in enlarging the circle of beneficiaries, the Act has encroached on the rights of the employees of the appellant. But then, the trust is the creation not of the appellant but of the Legislature, which gave the employees certain rights which they did not have before, and what it can give, it can also take away or modify, and we do not see how the employers are aggrieved by it. We are of opinion that no valid grounds exist on which S. 3 (1) and S. 3 (2) (a) of the impugned Act could be attacked as unconstitutional, and they must accordingly be held to be valid.
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the Sovereign as bona vacantia. Vide Holdsworths History of English Law, Second Edition, Vol. 7, pages 495-496. In Connecticut Mutual Life Insurance co. v. Moore, (1947) 333 US 541 at p. 546: 92 Law Ed 863 at p. 869 (U),the-principle behind the law was stated to be that "the State may, more properly, be custodian and beneficiary of abandoned property than any other person."Consistently with the principle stated above, a law relating to abandoned property enacts firstly provisions for the State conserving and safeguarding for the benefit of the true owners property in respect of which no claim is made for a specified and reasonable period, and secondly, for those properties vesting in the State absolutely when no claim is made with reference thereto by the true owners within a time limited32.In the light of the above discussion, there cannot be any reasonable doubt that the impugned Act cannot be regarded as one relating to abandoned property.The period of three years mentioned in S. 2 (10) of the Act is merely the period of limitation mentioned in Art. 102 of the Limitation Act, and even taking into account the class of persons whose claims are dealt with in the Act, as counsel for respondents would have us do, the period cannot be regarded as adequate for raising a presumption as to abandonment. A more serious objection to viewing the legislation as one relating to abandoned claims is that there is no provision made in the Act for investigating the claims of the employees or for payment of the amounts due to them, if they established their claims.The purpose of a legislation with respect to abandoned property being, in the first instance, to safeguard the property for the benefit of the true owner and the State taking it over only in the absence of such claims, a law which vests the property absolutely in the State without regard to the claims of the true owners cannot be considered as one relating to abandoned property.This contention of the respondents must also be rejected33. In the result, we are of opinion that S. 3 (1) in the so far as it relates to unpaid accumulations in S. 3 (2) (b) is unconstitutional and voidSo far as this item is concerned, the position of the employers is wholly different from what it is as regards unpaid accumulations. Section 8 of the Wages Act deals with the question of fines which could be imposed by the employer, and it provides that they should be entered in a separate register, and applied for the benefit of his employees. It is not denied by the appellant that under this provision the fines are constituted a trust fund and that the employers are bare trustees in respect of such fund. Now, the grievance of the appellant is that the Act deprives it of its rights as trustees, and vests them in the Board, and that, further while the beneficiaries under S. 8 of the Wages Act are its own employees, under S. 5 (2) of the impugned Act they include other persons as well. There might have been substance in the complaint that the appellant had been deprived of its rights as trustee if it had any beneficial interest in the Fund. But admittedly, it has none, and it is therefore difficult to hold that there has been such substantial deprivation of property, as will offend Art. 31 (2) according to the decisions in State of West Bengal v. Subodh, Gopal (A) and Dwarkadas Shriniwas of Bombay v. Sholapur Spinning and Weaving Co. Ltd. (B), (supra) or such unreasonable interference with rights to property, as will infringe Art. 19 (1)t is arguedwith some emphasis that in enlarging the circle of beneficiaries, the Act has encroached on the rights of the employees of the appellant. But then, the trust is the creation not of the appellant but of the Legislature, which gave the employees certain rights which they did not have before, and what it can give, it can also take away or modify, and we do not see how the employers are aggrieved by it. We are of opinion that no valid grounds exist on which S. 3 (1) and S. 3 (2) (a) of the impugned Act could be attacked as unconstitutional, and they must accordingly be held to be valid9. Subsequent to this decision, this Court had occasion to consider the true scope of Art. 31 (2) in relation to Art. 31 (1) in The State of West Bengal v. Subodh Gopal, 1954 SCR 587 : (AIR 1954 SC 92 ) (A) and in Dwarkadas Shrinivas of Bombay v. The Sholapur Spinning and Weaving Co. Ltd., 1954 SCR 674 : (AIR 1954 SC 119 ) (B). In The State of West Bengal v. Subodh Gopal (A) (supra), the majority of the learned Judges took the view that Arts. 31 (1) and 31 (2) were not mutually exclusive, that it was not an essential requisite of acquisition under Art. 31 (2) that there should be a transfer of title to the State, that deprivation of property and substantial abridgement of the rights of the owner were also within Art. 31 (2), and that a law which produced those results must, in order to be valid, satisfy the conditions laid down in that Article. Das J., (as he then was) differed from this view, and held that the contents of the two provisions were distinct, that while Art. 31 (1) had reference to the "police power" of the State, Art. 31 (2) dealt with the power of "eminent domain". In Dwarkadas Shrinivas of Bombay v. The Sholapur Spinning and Weaving Co. Ltd. (B) (supra), the majority of the Judges again reiterated the view expressed in The State of West Bengal v. Subodh Gopal Bose (A) (supra) that Arts. 31 (1) and 31 (2) covered the same ground, and that substantial interference with rights to property would be within the operation of Art. 31 (2).
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Ultra Tech Cement Ltd Vs. Competition Commission of India and Ors | on the Appellants by the Competition Commission. The Appellants challenged the same by way of appeals before the Competition Appellate Tribunal where the appeals are subjudice & the Tribunal while granting stay of payment of penalty imposed a condition that the Appellants shall pay 10% of the penalty to be deposited in the Consolidated Fund of India & in the event of non-payment by any Appellant, the appeal of such Appellants shall stand dismissed. 2. Since the controversy in these appeals is confined to the question as to whether the order of the Tribunal is justified while issuing a direction to the Appellants to deposit 10% of the amount of the penalty imposed by the Competition Commission of India (CCI), it is not quite essential to go into the merits of the appeal which is subjudice before the Tribunal. At this stage, the limited question is whether the Tribunal was justified in directing the Appellants to deposit even 10% of the penalty imposed on the Appellants by the CCI against which they have preferred an appeal before the Tribunal as already indicated hereinbefore. 3. The Tribunal although has admitted the appeal, it has passed an order to the effect that the Appellants should pay 10% of the penalty imposed by the CCI in the nature of a pre-deposit which is normally provided under several Acts, which are statutory in nature under the relevant Acts but is not provided in the Act applicable to these matters. However, insofar as the nature of the allegation that has been levelled against the Appellants, it is in regard to the charge/allegation that they have indulged in cartelisation of the commodity which they were manufacturing-which is cement and they increased their margin of profit by increasing the prices artificially and unreasonably in the year spanning between 2009 to 2011. Since the Tribunal thought it proper to direct the Appellant companies to deposit the 10% of the penalty, the Tribunal thought it appropriate to assign reasons in this regard and, therefore, passed a detailed order which is under challenge in these appeals, holding therein finally that 10% payment of penalty imposed would be justified in the facts and circumstances of the case. 4. As already stated earlier, all the Appellants have assailed that order stating that even 10% payment by way of penalty would result into huge amount running into several crores of rupees which will be an unnecessary and a grave financial burden on the companies turnover as the Tribunal itself has recorded a finding that they have a strong prima facie case in their favour against the allegation of cartelisation. In this view of the matter, all these appeals have been filed where the prayer essentially is to the effect that this Court should stay the order of imposition of even 10% of the penalty in view of the fact that the appeals are listed for hearing on 21.08.2013 and in view of the said fact, there was no necessity of directing the Appellants to deposit this 10% by way of the penalty, the justification of which is yet to be gone into by the Tribunal. 5. Learned Counsels representing the Appellants have sincerely made an endeavour to impress upon this Court that the imposition of 10% penalty is neither in pursuance of any provision under the Competition Act, 2002 as there is no provision of pre-deposit under the Competition Act, 2002 in order to entertain appeal nor the Tribunal was justified in imposing this rider directing the parties to deposit 10% by way of penalty as it is yet to examine the reasonableness and justification of the order under appeal. In addition, it was submitted that in view of the observation of the Tribunal to the effect that there is a strong prima facie case in their favour against the allegation of cartelisation, it was absolutely not essential to saddle the Appellants with this huge financial liability. 6. In response to the show cause notice, counsel for the CCI and the Builders Association of India are also present before us, who obviously supported the order passed by the Tribunal imposing the penalty of 10% but the counsel for the Appellants assailed the order for the reasons referred to hereinabove. 7. Having heard them at some length, we are of the view that it would not be appropriate for us to make any observation or express any opinion insofar as the merit of the allegation levelled against the Appellants are concerned as the same is subjudice before the Tribunal. But we are surely concerned with the order of penalty imposed on the Appellants by the CCI which, for the time being, has been limited for payment to the extent of 10% of the amount which has been determined by the CCI. Having heard them we are further of the view that if the penalty order made by the CCI is not given effect to in a blanket way by exempting the Appellants from making the payment, it might practically amount to allowing their appeals by the Tribunal. Besides this, it is common practice in the legal arena that a decree, penalty or any order which is in the nature of payment in terms of money, the same is rarely interfered with and obviously so as in case of setting aside such order, the affected party can always be adequately compensated. At this stage, therefore, if the Tribunal thought it proper to take an equitable view of the matter by directing the Appellants to pay only 10% of the amount to be paid by them, the same in our view is not fit to be interfered with by way of an interim measure. The concern of this Court, however, is if the appeal is finally allowed by the Tribunal then what exactly would be the way out to pass on the amount of penalty to the benefit of the consumers, if the same is transferred to the State exchequer through the Consolidated Fund of India. | 1[ds]7. Having heard them at some length, we are of the view that it would not be appropriate for us to make any observation or express any opinion insofar as the merit of the allegation levelled against the Appellants are concerned as the same is subjudice before the Tribunal. But we are surely concerned with the order of penalty imposed on the Appellants by the CCI which, for the time being, has been limited for payment to the extent of 10% of the amount which has been determined by the CCI. Having heard them we are further of the view that if the penalty order made by the CCI is not given effect to in a blanket way by exempting the Appellants from making the payment, it might practically amount to allowing their appeals by the Tribunal. Besides this, it is common practice in the legal arena that a decree, penalty or any order which is in the nature of payment in terms of money, the same is rarely interfered with and obviously so as in case of setting aside such order, the affected party can always be adequately compensated. At this stage, therefore, if the Tribunal thought it proper to take an equitable view of the matter by directing the Appellants to pay only 10% of the amount to be paid by them, the same in our view is not fit to be interfered with by way of an interim measure. The concern of this Court, however, is if the appeal is finally allowed by the Tribunal then what exactly would be the way out to pass on the amount of penalty to the benefit of the consumers, if the same is transferred to the State exchequer through the Consolidated Fund of India. | 1 | 1,232 | 321 | ### 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:
on the Appellants by the Competition Commission. The Appellants challenged the same by way of appeals before the Competition Appellate Tribunal where the appeals are subjudice & the Tribunal while granting stay of payment of penalty imposed a condition that the Appellants shall pay 10% of the penalty to be deposited in the Consolidated Fund of India & in the event of non-payment by any Appellant, the appeal of such Appellants shall stand dismissed. 2. Since the controversy in these appeals is confined to the question as to whether the order of the Tribunal is justified while issuing a direction to the Appellants to deposit 10% of the amount of the penalty imposed by the Competition Commission of India (CCI), it is not quite essential to go into the merits of the appeal which is subjudice before the Tribunal. At this stage, the limited question is whether the Tribunal was justified in directing the Appellants to deposit even 10% of the penalty imposed on the Appellants by the CCI against which they have preferred an appeal before the Tribunal as already indicated hereinbefore. 3. The Tribunal although has admitted the appeal, it has passed an order to the effect that the Appellants should pay 10% of the penalty imposed by the CCI in the nature of a pre-deposit which is normally provided under several Acts, which are statutory in nature under the relevant Acts but is not provided in the Act applicable to these matters. However, insofar as the nature of the allegation that has been levelled against the Appellants, it is in regard to the charge/allegation that they have indulged in cartelisation of the commodity which they were manufacturing-which is cement and they increased their margin of profit by increasing the prices artificially and unreasonably in the year spanning between 2009 to 2011. Since the Tribunal thought it proper to direct the Appellant companies to deposit the 10% of the penalty, the Tribunal thought it appropriate to assign reasons in this regard and, therefore, passed a detailed order which is under challenge in these appeals, holding therein finally that 10% payment of penalty imposed would be justified in the facts and circumstances of the case. 4. As already stated earlier, all the Appellants have assailed that order stating that even 10% payment by way of penalty would result into huge amount running into several crores of rupees which will be an unnecessary and a grave financial burden on the companies turnover as the Tribunal itself has recorded a finding that they have a strong prima facie case in their favour against the allegation of cartelisation. In this view of the matter, all these appeals have been filed where the prayer essentially is to the effect that this Court should stay the order of imposition of even 10% of the penalty in view of the fact that the appeals are listed for hearing on 21.08.2013 and in view of the said fact, there was no necessity of directing the Appellants to deposit this 10% by way of the penalty, the justification of which is yet to be gone into by the Tribunal. 5. Learned Counsels representing the Appellants have sincerely made an endeavour to impress upon this Court that the imposition of 10% penalty is neither in pursuance of any provision under the Competition Act, 2002 as there is no provision of pre-deposit under the Competition Act, 2002 in order to entertain appeal nor the Tribunal was justified in imposing this rider directing the parties to deposit 10% by way of penalty as it is yet to examine the reasonableness and justification of the order under appeal. In addition, it was submitted that in view of the observation of the Tribunal to the effect that there is a strong prima facie case in their favour against the allegation of cartelisation, it was absolutely not essential to saddle the Appellants with this huge financial liability. 6. In response to the show cause notice, counsel for the CCI and the Builders Association of India are also present before us, who obviously supported the order passed by the Tribunal imposing the penalty of 10% but the counsel for the Appellants assailed the order for the reasons referred to hereinabove. 7. Having heard them at some length, we are of the view that it would not be appropriate for us to make any observation or express any opinion insofar as the merit of the allegation levelled against the Appellants are concerned as the same is subjudice before the Tribunal. But we are surely concerned with the order of penalty imposed on the Appellants by the CCI which, for the time being, has been limited for payment to the extent of 10% of the amount which has been determined by the CCI. Having heard them we are further of the view that if the penalty order made by the CCI is not given effect to in a blanket way by exempting the Appellants from making the payment, it might practically amount to allowing their appeals by the Tribunal. Besides this, it is common practice in the legal arena that a decree, penalty or any order which is in the nature of payment in terms of money, the same is rarely interfered with and obviously so as in case of setting aside such order, the affected party can always be adequately compensated. At this stage, therefore, if the Tribunal thought it proper to take an equitable view of the matter by directing the Appellants to pay only 10% of the amount to be paid by them, the same in our view is not fit to be interfered with by way of an interim measure. The concern of this Court, however, is if the appeal is finally allowed by the Tribunal then what exactly would be the way out to pass on the amount of penalty to the benefit of the consumers, if the same is transferred to the State exchequer through the Consolidated Fund of India.
### Response:
1
### Explanation:
7. Having heard them at some length, we are of the view that it would not be appropriate for us to make any observation or express any opinion insofar as the merit of the allegation levelled against the Appellants are concerned as the same is subjudice before the Tribunal. But we are surely concerned with the order of penalty imposed on the Appellants by the CCI which, for the time being, has been limited for payment to the extent of 10% of the amount which has been determined by the CCI. Having heard them we are further of the view that if the penalty order made by the CCI is not given effect to in a blanket way by exempting the Appellants from making the payment, it might practically amount to allowing their appeals by the Tribunal. Besides this, it is common practice in the legal arena that a decree, penalty or any order which is in the nature of payment in terms of money, the same is rarely interfered with and obviously so as in case of setting aside such order, the affected party can always be adequately compensated. At this stage, therefore, if the Tribunal thought it proper to take an equitable view of the matter by directing the Appellants to pay only 10% of the amount to be paid by them, the same in our view is not fit to be interfered with by way of an interim measure. The concern of this Court, however, is if the appeal is finally allowed by the Tribunal then what exactly would be the way out to pass on the amount of penalty to the benefit of the consumers, if the same is transferred to the State exchequer through the Consolidated Fund of India.
|
Madhuker G. E. Pankakar Vs. Jaswant Chobbildas Rajani & Ors | a lasting nature constituted the offices of profit-more like standing counsel. If, in our case, had there been a fixed panel of doctors with special duties and discipline, regardless of doctors being there to fill the positions or no, a different complexion could be discerned- as in the case of specified number of Government pleaders, public prosecutors and the like, the offices surviving even if they remain unfilled. On the other hand, no rigid number of Insurance Medical Practitioners is required by the rules or otherwise. If an Insurance Medical Practitioner withdraws, there is no office sticking out even thereafter called office of Insurance Medical Practitioner. The critical test of independent existence of the position irrespective of the occupant is just not satisfied. Likewise, it is not possible to conclude that these doctors, though subject to responsibilities, eligible to remuneration and liable to removal-all with a governmental savour-cannot squarely fall under the expression Holding under Government. Enveloped, though the Insurance Medical Officer is, by governmental influence, and working, though he is, within an official orbit, we are unable to hold that there is an office of profit held by him and that he is under government. This conclusion avoids the evil of public duty conflicting with private interest and accommodation of more technical persons in semi-voluntary social projects in an era of expanding cosmos of State activity.We hold, not without hesitation, that the appellant suffered no disqualification on the score of holding office of profit under government. Is it not a sad reflection on legislative heedlessness that, notwithstanding forensic controversy for a long period not a little legislative finger had been moved to clarify the law and preempt litigation. Judicial pessimism persuades us not to be hopeful even after this judgment. The Court and the Legislature have no medium of inter-communication under our system. Its desirability was emphasised by Justice Cardozo, way back in 1921 (when he addressed the Association of the Bar of the City of New York and proposed an agency to mediate between the courts and the legislature). In characteristically beautiful prose he said:"The Courts are not helped as they could and ought to be in the adaptation of law to justice. The reason they are not helped in because there is no one whose business it is to give warning that help is needed.. We must have a courier who will carry the tidings of distress.. Today courts and legislature work in separation and aloofness. The penalty is paid both in the wasted effort of production and in the lowered quality of the product. On the one side, the judges, left to fight against anachronism and injustice by the methods of judge-made law, are distracted by the conflicting promptings of justice an d logic, of consistency and mercy, and the output of their labors bears the tokens of the strain. On the other side, the legislature, informed only casually and intermittently of the needs and problems of the courts, without expert or responsible or disinterested or systematic advice as to the working of one rule or another, patches the fabric here and there, and mars often when it would mend. Legislature and courts move on in proud and silent isolation. Some agency must be found to mediate between them."In the light of the conclusion we have reached, the other two grounds raised may not strictly arise for consideration. However, since arguments have been addressed, we had better briefly express our view. It was argued by Shri Bhatt that when the ground for invalidation of the election is a disqualification for membership, the proper procedure is to invoke s. 44 and not to resort to an elect ion petition under s. 21. On a close study of the two provisions in the light of the ruling of this Court in 1953 SCR 1154, we are satisfied that an election petition under s. 21 is all inclusive and not under inclusive. What we mean is that even if the invalidation of the election is on the score of the disqualification under s. 16 it is appropriate to raise that point under s. 21 which is comprehensive. All grounds on the strength of which an election can be demolished can be raised in a proceeding under s. 21. The language of the provision is wide enough. Maybe that supervening disqualifications after a person is elected may attract s. 44, but we are unable to agree that the latter provision cuts back on the width of the specific section devoted to calling in question an election of a councilor (including the President). We agree in this regard with the Full Bench decision in Dattatraya(1). Likewise is the fate of the feeble argument that because there is a provision for challenging the nomination of a candidate and for appealing against the decision of the returning officer regarding that objection, it is not permissible to urge a ground then available later before the Election Tribunal.21. In the present case there was no decision by the Returning Officer about the nomination paper, and so we are not confronted by the appellate adjudication by the District Judge about the validity or otherwise of the nomination and its resuscitation before the Election Tribunal. In this view we do not accede to the contention of the appellant based on s. 44 or rule 15.The third plea, not aimed at salvaging the poll success of the appellant but in unseating the respondent who has been declared elected by the Tribunal also has no merit from a legal angle although it is unfortunate that in a situation where there are only two candidates and the election of one is set aside by the Tribunal, the other automatically gets returned, without resort to poll s. Anyway, in the present case, if the appellants election were invalid, there is only a single survivor left in the field, i.e., the first respondent. Naturally, in any constituency where there is only one valid nomination, that nominee gets elected for want of contest.22. | 1[ds]We cannot equate it with the post of a peon or security gunmen who too has duties to perform or a workshop where Government vehicles are repaired, or a milk vendor from an approved list who supplies milk to government hospitals. A panel of lawyers for Legal Aid to the Poor or a body of doctors enlisted for emergency service in an epidemic outbreak charged with responsibilities and paid by Government cannot be a pile of offices of profit. If this perspective be correct, Kanta and Mahadeo fit into a legal scheme. In the former, an ad hoc Assistant Government Pleader with duties and remuneration was held to fall outside office of profit. It was a casual engagement, not exalted to a permanent position, occupiedby A or B. In Mahadeo, a permanent panel of lawyers maintained by the Railway Administration with special duties of a lasting nature constituted the offices oflike standing counsel. If, in our case, had there been a fixed panel of doctors with special duties and discipline, regardless of doctors being there to fill the positions or no, a different complexion could be discernedas in the case of specified number of Government pleaders, public prosecutors and the like, the offices surviving even if they remain unfilled. On the other hand, no rigid number of Insurance Medical Practitioners is required by the rules or otherwise. If an Insurance Medical Practitioner withdraws, there is no office sticking out even thereafter called office of Insurance Medical Practitioner. The critical test of independent existence of the position irrespective of the occupant is just not satisfied. Likewise, it is not possible to conclude that these doctors, though subject to responsibilities, eligible to remuneration and liable towith a governmentalsquarely fall under the expression Holding under Government. Enveloped, though the Insurance Medical Officer is, by governmental influence, and working, though he is, within an official orbit, we are unable to hold that there is an office of profit held by him and that he is under government. This conclusion avoids the evil of public duty conflicting with private interest and accommodation of more technical persons insocial projects in an era of expanding cosmos of State activity.We hold, not without hesitation, that the appellant suffered no disqualification on the score of holding office of profit under government. Is it not a sad reflection on legislative heedlessness that, notwithstanding forensic controversy for a long period not a little legislative finger had been moved to clarify the law and preempt litigation. Judicial pessimism persuades us not to be hopeful even after this judgment. The Court and the Legislature have no medium ofunder our system. Its desirability was emphasised by Justice Cardozo, way back in 1921 (when he addressed the Association of the Bar of the City of New York and proposed an agency to mediate between the courts and the legislature). In characteristically beautiful prose heCourts are not helped as they could and ought to be in the adaptation of law to justice. The reason they are not helped in because there is no one whose business it is to give warning that help is needed.. We must have a courier who will carry the tidings of distress.. Today courts and legislature work in separation and aloofness. The penalty is paid both in the wasted effort of production and in the lowered quality of the product. On the one side, the judges, left to fight against anachronism and injustice by the methods oflaw, are distracted by the conflicting promptings of justice an d logic, of consistency and mercy, and the output of their labors bears the tokens of the strain. On the other side, the legislature, informed only casually and intermittently of the needs and problems of the courts, without expert or responsible or disinterested or systematic advice as to the working of one rule or another, patches the fabric here and there, and mars often when it would mend. Legislature and courts move on in proud and silent isolation. Some agency must be found to mediate betweenthe light of the conclusion we have reached, the other two grounds raised may not strictly arise for consideration. However, since arguments have been addressed, we had better briefly express our view. It was argued by Shri Bhatt that when the ground for invalidation of the election is a disqualification for membership, the proper procedure is to invoke s. 44 and not to resort to an elect ion petition under s. 21. On a close study of the two provisions in the light of the ruling of this Court in 1953 SCR 1154, we are satisfied that an election petition under s. 21 is all inclusive and not under inclusive. What we mean is that even if the invalidation of the election is on the score of the disqualification under s. 16 it is appropriate to raise that point under s. 21 which is comprehensive. All grounds on the strength of which an election can be demolished can be raised in a proceeding under s. 21. The language of the provision is wide enough. Maybe that supervening disqualifications after a person is elected may attract s. 44, but we are unable to agree that the latter provision cuts back on the width of the specific section devoted to calling in question an election of a councilor (including the President). We agree in this regard with the Full Bench decision in Dattatraya(1). Likewise is the fate of the feeble argument that because there is a provision for challenging the nomination of a candidate and for appealing against the decision of the returning officer regarding that objection, it is not permissible to urge a ground then available later before the Electionthe present case there was no decision by the Returning Officer about the nomination paper, and so we are not confronted by the appellate adjudication by the District Judge about the validity or otherwise of the nomination and its resuscitation before the Election Tribunal. In this view we do not accede to the contention of the appellant based on s. 44 or rule 15.The third plea, not aimed at salvaging the poll success of the appellant but in unseating the respondent who has been declared elected by the Tribunal also has no merit from a legal angle although it is unfortunate that in a situation where there are only two candidates and the election of one is set aside by the Tribunal, the other automatically gets returned, without resort to poll s. Anyway, in the present case, if the appellants election were invalid, there is only a single survivor left in the field, i.e., the first respondent. Naturally, in any constituency where there is only one valid nomination, that nominee gets elected for want of contest. | 1 | 11,372 | 1,229 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
a lasting nature constituted the offices of profit-more like standing counsel. If, in our case, had there been a fixed panel of doctors with special duties and discipline, regardless of doctors being there to fill the positions or no, a different complexion could be discerned- as in the case of specified number of Government pleaders, public prosecutors and the like, the offices surviving even if they remain unfilled. On the other hand, no rigid number of Insurance Medical Practitioners is required by the rules or otherwise. If an Insurance Medical Practitioner withdraws, there is no office sticking out even thereafter called office of Insurance Medical Practitioner. The critical test of independent existence of the position irrespective of the occupant is just not satisfied. Likewise, it is not possible to conclude that these doctors, though subject to responsibilities, eligible to remuneration and liable to removal-all with a governmental savour-cannot squarely fall under the expression Holding under Government. Enveloped, though the Insurance Medical Officer is, by governmental influence, and working, though he is, within an official orbit, we are unable to hold that there is an office of profit held by him and that he is under government. This conclusion avoids the evil of public duty conflicting with private interest and accommodation of more technical persons in semi-voluntary social projects in an era of expanding cosmos of State activity.We hold, not without hesitation, that the appellant suffered no disqualification on the score of holding office of profit under government. Is it not a sad reflection on legislative heedlessness that, notwithstanding forensic controversy for a long period not a little legislative finger had been moved to clarify the law and preempt litigation. Judicial pessimism persuades us not to be hopeful even after this judgment. The Court and the Legislature have no medium of inter-communication under our system. Its desirability was emphasised by Justice Cardozo, way back in 1921 (when he addressed the Association of the Bar of the City of New York and proposed an agency to mediate between the courts and the legislature). In characteristically beautiful prose he said:"The Courts are not helped as they could and ought to be in the adaptation of law to justice. The reason they are not helped in because there is no one whose business it is to give warning that help is needed.. We must have a courier who will carry the tidings of distress.. Today courts and legislature work in separation and aloofness. The penalty is paid both in the wasted effort of production and in the lowered quality of the product. On the one side, the judges, left to fight against anachronism and injustice by the methods of judge-made law, are distracted by the conflicting promptings of justice an d logic, of consistency and mercy, and the output of their labors bears the tokens of the strain. On the other side, the legislature, informed only casually and intermittently of the needs and problems of the courts, without expert or responsible or disinterested or systematic advice as to the working of one rule or another, patches the fabric here and there, and mars often when it would mend. Legislature and courts move on in proud and silent isolation. Some agency must be found to mediate between them."In the light of the conclusion we have reached, the other two grounds raised may not strictly arise for consideration. However, since arguments have been addressed, we had better briefly express our view. It was argued by Shri Bhatt that when the ground for invalidation of the election is a disqualification for membership, the proper procedure is to invoke s. 44 and not to resort to an elect ion petition under s. 21. On a close study of the two provisions in the light of the ruling of this Court in 1953 SCR 1154, we are satisfied that an election petition under s. 21 is all inclusive and not under inclusive. What we mean is that even if the invalidation of the election is on the score of the disqualification under s. 16 it is appropriate to raise that point under s. 21 which is comprehensive. All grounds on the strength of which an election can be demolished can be raised in a proceeding under s. 21. The language of the provision is wide enough. Maybe that supervening disqualifications after a person is elected may attract s. 44, but we are unable to agree that the latter provision cuts back on the width of the specific section devoted to calling in question an election of a councilor (including the President). We agree in this regard with the Full Bench decision in Dattatraya(1). Likewise is the fate of the feeble argument that because there is a provision for challenging the nomination of a candidate and for appealing against the decision of the returning officer regarding that objection, it is not permissible to urge a ground then available later before the Election Tribunal.21. In the present case there was no decision by the Returning Officer about the nomination paper, and so we are not confronted by the appellate adjudication by the District Judge about the validity or otherwise of the nomination and its resuscitation before the Election Tribunal. In this view we do not accede to the contention of the appellant based on s. 44 or rule 15.The third plea, not aimed at salvaging the poll success of the appellant but in unseating the respondent who has been declared elected by the Tribunal also has no merit from a legal angle although it is unfortunate that in a situation where there are only two candidates and the election of one is set aside by the Tribunal, the other automatically gets returned, without resort to poll s. Anyway, in the present case, if the appellants election were invalid, there is only a single survivor left in the field, i.e., the first respondent. Naturally, in any constituency where there is only one valid nomination, that nominee gets elected for want of contest.22.
### Response:
1
### Explanation:
occupiedby A or B. In Mahadeo, a permanent panel of lawyers maintained by the Railway Administration with special duties of a lasting nature constituted the offices oflike standing counsel. If, in our case, had there been a fixed panel of doctors with special duties and discipline, regardless of doctors being there to fill the positions or no, a different complexion could be discernedas in the case of specified number of Government pleaders, public prosecutors and the like, the offices surviving even if they remain unfilled. On the other hand, no rigid number of Insurance Medical Practitioners is required by the rules or otherwise. If an Insurance Medical Practitioner withdraws, there is no office sticking out even thereafter called office of Insurance Medical Practitioner. The critical test of independent existence of the position irrespective of the occupant is just not satisfied. Likewise, it is not possible to conclude that these doctors, though subject to responsibilities, eligible to remuneration and liable towith a governmentalsquarely fall under the expression Holding under Government. Enveloped, though the Insurance Medical Officer is, by governmental influence, and working, though he is, within an official orbit, we are unable to hold that there is an office of profit held by him and that he is under government. This conclusion avoids the evil of public duty conflicting with private interest and accommodation of more technical persons insocial projects in an era of expanding cosmos of State activity.We hold, not without hesitation, that the appellant suffered no disqualification on the score of holding office of profit under government. Is it not a sad reflection on legislative heedlessness that, notwithstanding forensic controversy for a long period not a little legislative finger had been moved to clarify the law and preempt litigation. Judicial pessimism persuades us not to be hopeful even after this judgment. The Court and the Legislature have no medium ofunder our system. Its desirability was emphasised by Justice Cardozo, way back in 1921 (when he addressed the Association of the Bar of the City of New York and proposed an agency to mediate between the courts and the legislature). In characteristically beautiful prose heCourts are not helped as they could and ought to be in the adaptation of law to justice. The reason they are not helped in because there is no one whose business it is to give warning that help is needed.. We must have a courier who will carry the tidings of distress.. Today courts and legislature work in separation and aloofness. The penalty is paid both in the wasted effort of production and in the lowered quality of the product. On the one side, the judges, left to fight against anachronism and injustice by the methods oflaw, are distracted by the conflicting promptings of justice an d logic, of consistency and mercy, and the output of their labors bears the tokens of the strain. On the other side, the legislature, informed only casually and intermittently of the needs and problems of the courts, without expert or responsible or disinterested or systematic advice as to the working of one rule or another, patches the fabric here and there, and mars often when it would mend. Legislature and courts move on in proud and silent isolation. Some agency must be found to mediate betweenthe light of the conclusion we have reached, the other two grounds raised may not strictly arise for consideration. However, since arguments have been addressed, we had better briefly express our view. It was argued by Shri Bhatt that when the ground for invalidation of the election is a disqualification for membership, the proper procedure is to invoke s. 44 and not to resort to an elect ion petition under s. 21. On a close study of the two provisions in the light of the ruling of this Court in 1953 SCR 1154, we are satisfied that an election petition under s. 21 is all inclusive and not under inclusive. What we mean is that even if the invalidation of the election is on the score of the disqualification under s. 16 it is appropriate to raise that point under s. 21 which is comprehensive. All grounds on the strength of which an election can be demolished can be raised in a proceeding under s. 21. The language of the provision is wide enough. Maybe that supervening disqualifications after a person is elected may attract s. 44, but we are unable to agree that the latter provision cuts back on the width of the specific section devoted to calling in question an election of a councilor (including the President). We agree in this regard with the Full Bench decision in Dattatraya(1). Likewise is the fate of the feeble argument that because there is a provision for challenging the nomination of a candidate and for appealing against the decision of the returning officer regarding that objection, it is not permissible to urge a ground then available later before the Electionthe present case there was no decision by the Returning Officer about the nomination paper, and so we are not confronted by the appellate adjudication by the District Judge about the validity or otherwise of the nomination and its resuscitation before the Election Tribunal. In this view we do not accede to the contention of the appellant based on s. 44 or rule 15.The third plea, not aimed at salvaging the poll success of the appellant but in unseating the respondent who has been declared elected by the Tribunal also has no merit from a legal angle although it is unfortunate that in a situation where there are only two candidates and the election of one is set aside by the Tribunal, the other automatically gets returned, without resort to poll s. Anyway, in the present case, if the appellants election were invalid, there is only a single survivor left in the field, i.e., the first respondent. Naturally, in any constituency where there is only one valid nomination, that nominee gets elected for want of contest.
|
SHYAM SAHNI Vs. ARJUN PRAKASH AND OTHERS | date of hearing i.e. 07.03.2017, respondent No.1 offered three properties owned by his mother-in-law (Rama Khanna from Amritsar) by depositing title deeds stating that he has no other security to offer. Observing that respondent No.1 has failed to comply with his undertakings/statements, on 26.05.2017, the learned Single Judge directed respondent No.1 to deposit his passport and made an order restraining respondent No.1 from leaving India. 23. According to respondent No.1, he has shown his bonafide by producing additional security before the Court by depositing original title deeds of three properties belonging to his mother-in-law (Rama Khanna from Amritsar) to the tune of Rs.4.45 crores. Learned counsel for respondent No.1 has submitted that equitable mortgage of the suit property (i.e. 68, Friends Colony (West), First Floor, New Delhi) was made even in the first week of October, 2007 which was much prior to the ex-parte stay order dated 02.06.2008. Learned counsel further submitted that in October, 2008, additional Working Capital was granted to the company-M/s. Soul & Attires Creations Private Limited for Rs.5 crores (against Stock and Book Debts) as per banking regulations. According to respondent No.1, this enhanced limit is never a loan against the property; but only against Stocks and Book Debts. Learned counsel appearing for respondent No.1 has submitted that respondent No.1 is a bonafide legal owner of the suit property by means of registered will made in his favour by his father-Sarabjit Prakash dated 29.09.2006 who had the legal title in his name by way of registered sale deed executed by his wife Usha Prakash in exercise of the power vested in her through the registered Power of Attorney dated 03.01.2002 given to her by her mother Niamat Sahni and thus, respondent No.1 claims title over the suit property No.68, Friends Colony (West), First Floor, New Delhi. The question regarding the correctness of the sale deed executed by Usha Prakash – mother of respondent No.1 in favour of Sarabjit Prakash and the dispute raised regarding the title of the property could be determined only in the suit after parties adduced oral and documentary evidence. 24. The short point falling for consideration is whether respondent No.1 is to be proceeded for contempt and whether the learned Single Judge was right in directing the deposit of first respondents passport. Of course, on 15.07.2013, Sarabjit Prakash and respondent No.1 filed an undertaking that they shall clear dues of Bank of India and the suit property shall be cleared of all charges/encumbrances within a period of four months and that they shall make arrangement of the loan amount to be paid to the Bank of India from other moveable and immoveable properties. Subsequently also, Sarabjit Prakash and respondent No.1 filed an undertaking before the Court. Having filed the undertaking, it was required of the first respondent to keep up to his undertaking filed before the Court. On behalf of respondent No.1, learned counsel submitted that respondent No.1 was making genuine efforts to pay the amount to the Bank and clear the charge on the property; but due to unavoidable circumstances, they could not clear the charge over the suit property. As pointed out earlier, Sarabjit Prakash was suffering from illness and passed away within one week after the order was passed on 20.10.2015. 25. Since repeated undertakings were filed and the same were not complied with, learned Single Judge directed respondent No.1 to surrender his passport. The said order was passed to ensure the presence of the first respondent and compliance of the order of the Court. It cannot be said that the learned Single Judge exceeded the jurisdiction or committed an error in ordering surrender of the passport. In order to ensure the presence of the parties in the contempt proceedings, the Court is empowered to pass appropriate orders including the surrender of passport. While dealing with child custody matter, in David Jude vs. Hannah Grace Jude and Another (2003) 10 SCC 767 , the Supreme Court directed Union of India to cancel the passport of contemnor No.1 and to take necessary steps to secure the presence of contemnor No.1 with the child in India and to ensure her appearance before the Court on the date of hearing. 26. It is pointed out that the Division Bench proceeded as if the learned Single Judge has ordered impounding of the passport of respondent No.1; whereas, the learned Single Judge has only directed respondent No.1 to deposit his passport in the Court. As discussed earlier, the purpose of directing respondent No.1 to surrender his passport was only to ensure the presence of respondent No.1 who was filing repeated undertakings before the Court but was not complying with the same. In our view, the Division Bench was not right in setting aside the order of the learned Single Judge in directing respondent No.1 to deposit his passport before the Court and the judgment of the Division Bench cannot be sustained. In order to ensure the presence of respondent No.1 and to ensure further progress of the trial, the order of the learned Single Judge directing respondent No.1 to deposit his passport before the Court stands confirmed. 27. On behalf of the appellant, it is stated that in view of the order of the Division Bench, the contempt petition has been disposed of by the learned Single Judge on 04.12.2018 and prayed for restoration of the contempt petition. Since the suit is of the year 2008 and much of the courts time has been spent on the interim orders and on the contempt petition, we are not inclined to issue direction for restoration of the contempt petition. Since, the suit is of the year 2008 and the trial has already commenced and the matter is said to have been pending for cross-examination of the defendants witnesses, it is suffice to direct early expeditious disposal of the suit at the same time, ensuring that respondent No.1 will be available at the stage when the suit is disposed and in case he suffers an adverse decree. | 1[ds]Of course, on 15.07.2013, Sarabjit Prakash and respondent No.1 filed an undertaking that they shall clear dues of Bank of India and the suit property shall be cleared of all charges/encumbrances within a period of four months and that they shall make arrangement of the loan amount to be paid to the Bank of India from other moveable and immoveable properties. Subsequently also, Sarabjit Prakash and respondent No.1 filed an undertaking before the Court. Having filed the undertaking, it was required of the first respondent to keep up to his undertaking filed before the CourtAs pointed out earlier, Sarabjit Prakash was suffering from illness and passed away within one week after the order was passed on 20.10.201525. Since repeated undertakings were filed and the same were not complied with, learned Single Judge directed respondent No.1 to surrender his passport. The said order was passed to ensure the presence of the first respondent and compliance of the order of the Court. It cannot be said that the learned Single Judge exceeded the jurisdiction or committed an error in ordering surrender of the passport. In order to ensure the presence of the parties in the contempt proceedings, the Court is empowered to pass appropriate orders including the surrender of passport. While dealing with child custody matter, in David Jude vs. Hannah Grace Jude and Another (2003) 10 SCC 767 , the Supreme Court directed Union of India to cancel the passport of contemnor No.1 and to take necessary steps to secure the presence of contemnor No.1 with the child in India and to ensure her appearance before the Court on the date of hearing26. It is pointed out that the Division Bench proceeded as if the learned Single Judge has ordered impounding of the passport of respondent No.1; whereas, the learned Single Judge has only directed respondent No.1 to deposit his passport in the Court. As discussed earlier, the purpose of directing respondent No.1 to surrender his passport was only to ensure the presence of respondent No.1 who was filing repeated undertakings before the Court but was not complying with the same. In our view, the Division Bench was not right in setting aside the order of the learned Single Judge in directing respondent No.1 to deposit his passport before the Court and the judgment of the Division Bench cannot be sustained. In order to ensure the presence of respondent No.1 and to ensure further progress of the trial, the order of the learned Single Judge directing respondent No.1 to deposit his passport before the Court stands confirmedwe are not inclined to issue direction for restoration of the contempt petition. Since, the suit is of the year 2008 and the trial has already commenced and the matter is said to have been pending for cross-examination of the defendants witnesses, it is suffice to direct early expeditious disposal of the suit at the same time, ensuring that respondent No.1 will be available at the stage when the suit is disposed and in case he suffers an adverse decree | 1 | 4,576 | 541 | ### Instruction:
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date of hearing i.e. 07.03.2017, respondent No.1 offered three properties owned by his mother-in-law (Rama Khanna from Amritsar) by depositing title deeds stating that he has no other security to offer. Observing that respondent No.1 has failed to comply with his undertakings/statements, on 26.05.2017, the learned Single Judge directed respondent No.1 to deposit his passport and made an order restraining respondent No.1 from leaving India. 23. According to respondent No.1, he has shown his bonafide by producing additional security before the Court by depositing original title deeds of three properties belonging to his mother-in-law (Rama Khanna from Amritsar) to the tune of Rs.4.45 crores. Learned counsel for respondent No.1 has submitted that equitable mortgage of the suit property (i.e. 68, Friends Colony (West), First Floor, New Delhi) was made even in the first week of October, 2007 which was much prior to the ex-parte stay order dated 02.06.2008. Learned counsel further submitted that in October, 2008, additional Working Capital was granted to the company-M/s. Soul & Attires Creations Private Limited for Rs.5 crores (against Stock and Book Debts) as per banking regulations. According to respondent No.1, this enhanced limit is never a loan against the property; but only against Stocks and Book Debts. Learned counsel appearing for respondent No.1 has submitted that respondent No.1 is a bonafide legal owner of the suit property by means of registered will made in his favour by his father-Sarabjit Prakash dated 29.09.2006 who had the legal title in his name by way of registered sale deed executed by his wife Usha Prakash in exercise of the power vested in her through the registered Power of Attorney dated 03.01.2002 given to her by her mother Niamat Sahni and thus, respondent No.1 claims title over the suit property No.68, Friends Colony (West), First Floor, New Delhi. The question regarding the correctness of the sale deed executed by Usha Prakash – mother of respondent No.1 in favour of Sarabjit Prakash and the dispute raised regarding the title of the property could be determined only in the suit after parties adduced oral and documentary evidence. 24. The short point falling for consideration is whether respondent No.1 is to be proceeded for contempt and whether the learned Single Judge was right in directing the deposit of first respondents passport. Of course, on 15.07.2013, Sarabjit Prakash and respondent No.1 filed an undertaking that they shall clear dues of Bank of India and the suit property shall be cleared of all charges/encumbrances within a period of four months and that they shall make arrangement of the loan amount to be paid to the Bank of India from other moveable and immoveable properties. Subsequently also, Sarabjit Prakash and respondent No.1 filed an undertaking before the Court. Having filed the undertaking, it was required of the first respondent to keep up to his undertaking filed before the Court. On behalf of respondent No.1, learned counsel submitted that respondent No.1 was making genuine efforts to pay the amount to the Bank and clear the charge on the property; but due to unavoidable circumstances, they could not clear the charge over the suit property. As pointed out earlier, Sarabjit Prakash was suffering from illness and passed away within one week after the order was passed on 20.10.2015. 25. Since repeated undertakings were filed and the same were not complied with, learned Single Judge directed respondent No.1 to surrender his passport. The said order was passed to ensure the presence of the first respondent and compliance of the order of the Court. It cannot be said that the learned Single Judge exceeded the jurisdiction or committed an error in ordering surrender of the passport. In order to ensure the presence of the parties in the contempt proceedings, the Court is empowered to pass appropriate orders including the surrender of passport. While dealing with child custody matter, in David Jude vs. Hannah Grace Jude and Another (2003) 10 SCC 767 , the Supreme Court directed Union of India to cancel the passport of contemnor No.1 and to take necessary steps to secure the presence of contemnor No.1 with the child in India and to ensure her appearance before the Court on the date of hearing. 26. It is pointed out that the Division Bench proceeded as if the learned Single Judge has ordered impounding of the passport of respondent No.1; whereas, the learned Single Judge has only directed respondent No.1 to deposit his passport in the Court. As discussed earlier, the purpose of directing respondent No.1 to surrender his passport was only to ensure the presence of respondent No.1 who was filing repeated undertakings before the Court but was not complying with the same. In our view, the Division Bench was not right in setting aside the order of the learned Single Judge in directing respondent No.1 to deposit his passport before the Court and the judgment of the Division Bench cannot be sustained. In order to ensure the presence of respondent No.1 and to ensure further progress of the trial, the order of the learned Single Judge directing respondent No.1 to deposit his passport before the Court stands confirmed. 27. On behalf of the appellant, it is stated that in view of the order of the Division Bench, the contempt petition has been disposed of by the learned Single Judge on 04.12.2018 and prayed for restoration of the contempt petition. Since the suit is of the year 2008 and much of the courts time has been spent on the interim orders and on the contempt petition, we are not inclined to issue direction for restoration of the contempt petition. Since, the suit is of the year 2008 and the trial has already commenced and the matter is said to have been pending for cross-examination of the defendants witnesses, it is suffice to direct early expeditious disposal of the suit at the same time, ensuring that respondent No.1 will be available at the stage when the suit is disposed and in case he suffers an adverse decree.
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Of course, on 15.07.2013, Sarabjit Prakash and respondent No.1 filed an undertaking that they shall clear dues of Bank of India and the suit property shall be cleared of all charges/encumbrances within a period of four months and that they shall make arrangement of the loan amount to be paid to the Bank of India from other moveable and immoveable properties. Subsequently also, Sarabjit Prakash and respondent No.1 filed an undertaking before the Court. Having filed the undertaking, it was required of the first respondent to keep up to his undertaking filed before the CourtAs pointed out earlier, Sarabjit Prakash was suffering from illness and passed away within one week after the order was passed on 20.10.201525. Since repeated undertakings were filed and the same were not complied with, learned Single Judge directed respondent No.1 to surrender his passport. The said order was passed to ensure the presence of the first respondent and compliance of the order of the Court. It cannot be said that the learned Single Judge exceeded the jurisdiction or committed an error in ordering surrender of the passport. In order to ensure the presence of the parties in the contempt proceedings, the Court is empowered to pass appropriate orders including the surrender of passport. While dealing with child custody matter, in David Jude vs. Hannah Grace Jude and Another (2003) 10 SCC 767 , the Supreme Court directed Union of India to cancel the passport of contemnor No.1 and to take necessary steps to secure the presence of contemnor No.1 with the child in India and to ensure her appearance before the Court on the date of hearing26. It is pointed out that the Division Bench proceeded as if the learned Single Judge has ordered impounding of the passport of respondent No.1; whereas, the learned Single Judge has only directed respondent No.1 to deposit his passport in the Court. As discussed earlier, the purpose of directing respondent No.1 to surrender his passport was only to ensure the presence of respondent No.1 who was filing repeated undertakings before the Court but was not complying with the same. In our view, the Division Bench was not right in setting aside the order of the learned Single Judge in directing respondent No.1 to deposit his passport before the Court and the judgment of the Division Bench cannot be sustained. In order to ensure the presence of respondent No.1 and to ensure further progress of the trial, the order of the learned Single Judge directing respondent No.1 to deposit his passport before the Court stands confirmedwe are not inclined to issue direction for restoration of the contempt petition. Since, the suit is of the year 2008 and the trial has already commenced and the matter is said to have been pending for cross-examination of the defendants witnesses, it is suffice to direct early expeditious disposal of the suit at the same time, ensuring that respondent No.1 will be available at the stage when the suit is disposed and in case he suffers an adverse decree
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Rani Purnima Devi And Another Vs. Kumar Khagendra Narayan Dev And Another | an identifier and did not say that Arabali had put any questions to the testator about the execution of the will, and that the testator admitted the execution. In cross-examination he said that the testator signed in his presence at the bottom of the will. He however never said that the Will was read over to the testator or was read by him and that the testator admitted the execution of the Will to him and thereafter he signed the will at the bottom. Thus all that one finds is that he signed as a person who identified the testator.21. If therefore these two witnesses namely, Arabali and Dehiram Bora are to be treated as attesting witnesses for the purpose of S. 63 of the Indian Succession Act, (No. 39 of 1925), it is clear that they completely fail to prove due execution and attestation of the will as required by that section. So all that we come to is that there is a bald statement of Arabali to the effect that he examined the testator who admitted the execution of the will and there is the statement of Dehiram Bora that at that time he identified the testator before Arabali. It is on this that the Will was later registered by the Sub-Registrar.22. We may refer to one more circumstance that has been urged before us. It is said that the will undoubtedly existed in January, 1944 as evidenced by its registration. Therefore, if this was not a genuine Will of the testator he would have taken steps to revoke it, for he died almost 21 years after the registration of the Will. This, however, assumes that the testator knew of the existence of this Will. If he did not know of the existence of this Will there would be no question of his revoking it, however long afterwards he might have died. Now the evidence that the testator, knew of the existence of this Will consists only of what happened on December 29, 1943, and on the date when Arabali went to Majikuchi on commission in connection with the registration of the will. We have already dealt with the evidence with respect to these two dates and if that evidence is insufficient to prove due execution and attestation of the Will, as we hold it is, it would also be insufficient to show that the testator knew after the end of January, 1944 that such a Will existed. In the absence, therefore, of the knowledge of the testator about the existence of this Will, this circumstance loses all its force.23. There is no doubt that if a will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a Will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration Will dispel the doubt as to the genuineness of the will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the will did not read it over to the testator or did not bring home to him that he was admitting the execution of a will or did not satisfy himself in some other way (as, for example, by seeing the testator reading the Will) that the testator knew that it was a Will the execution of which he was admitting, the fact that the Will was registered would not be of much value. It is not unknown that registration may take place without the executant really knowing what he was registering. Law reports are full of cases in which registered Wills have not been acted upon : (see, for example, Vellaswamy Servai v. Sivaraman Servai, ILR 8 Rang 179 : (AIR 1930 PC 24 ), Surendra Nath v. Jnanendra Nath, AIR 1932 Cal 574 and Girja Datt Singh v. Gangotri Datt Singh, (S) AIR 1955 SC 346 . Therefore, the mere fact of registration may not by itself be enough to dispel all suspicion that may attach to the execution and attestation of a Will; though the fact that there has been registration would be an important circumstance in favour of the will being genuine if the evidence as to registration establishes that the testator admitted the execution of the will after knowing that it was a Will the execution of which he was admitting.24. The question therefore is whether in the circumstances of the present case the evidence as to registration discloses that the testator knew that he was admitting the execution of a Will when be is said to have put down his signature at the bottom of the will in the presence of Arabali. We have scrutinized that evidence carefully and we must say that the evidence falls short of satisfying us in the circumstances of this case that the testator knew that the document the execution of which he was admitting before Arabali and at the bottom of which he signed was his will. Therefore we are left with the bald fact of registration which in our opinion is insufficient in the circumstances of this case to dispel the suspicious circumstances which we have enumerated above. We are therefore not satisfied about the due execution and attestation of this will by the testator and hold that the propounder has been unable to dispel the suspicious circumstances which surround the execution and attestation of this Will. In the circumstances, no letters of administration in favour of the respondent can be granted on the basis of it. | 1[ds]The evidence, however, does not show that the relations between the testator and his son-in-law were particularly strained at the time of the execution of the will. In any case there is no satisfactory evidence to show that relations between the testator and his daughter were bad, even if the relations between him and his son-in-law were not of the best, In the circumstances we should have expected the testator to make some provision for the daughter, particularly when it is said that she was not well-off. There is no doubt therefore that the will is most unnatural and that is a suspicious circumstance which must be satisfactorily explained before the respondent can get letters of administration.8. Another suspicious circumstance is that the respondent gets the sole benefit under the will subject to the maintenance of the wife and the sister and he was certainly taking part in the execution of the will on the date it was executed. In such circumstances the respondent was required to remove the said suspicion by clear and satisfactory evidence.Another suspicious circumstance is that the signature of the testator does not appear to be his usual signature. That is why a lot of questions were put to the witnesses whether the testator signed the will with his left hand or right hand and evidence was also given that the right hand of the testator had been injured sometime before.10. Another suspicious circumstance is that it has been proved in this case that the testator used to sign blank papers for use in his cases in court and used to send them to his lawyer through his servants and these papers could be in the possession of Rameswar Sarma the lawyer of the testator, who has appeared as a witness to prove the will and who was, according to his evidence, consulted by the testator in this matter. Such papers could also be found in the possession of the testators mukhtars. Therefore it was possible to manufacture a will on papers already signed by the testator; and that is certainly a suspicious circumstance which had to be overcome in thisis obvious therefore that Sarma tried to pose as an independent witness by denying what his son-in-law had already stated about his connection with the respondent. In the circumstances he cannot also be held to be a disinterested witness, which he tried to be. Besides, none of these three witnesses belong to Na-hawli, where the execution of the will took place. The evidence also shows that among the sixteen persons who attested the will there were persons who were both independent and respectable like Banshidhar Goswami, a doctor, Jammi-ud-din, an elder of the village and Baneswar Deka, a retired Sarishtedar; but no attempt was made to produce these witnesses to dispel the suspicion arising from the circumstances which we have already mentioned.13. Apart from the witnesses being interested, the actual evidence given by them also does not in our opinion dispel the suspicion aroused in thisBhattacharya is contradicted by the respondent and Kulendra Narayan who says that Bhattacharya had been staying at Kulendra Narayans place for two days before and had gone from there to Na-hawli with the respondent and his father and Kulendra Narayan. The story therefore that Bhattacharya was invited by the testator is obviously false and if he did go to Na-hawli it must have been in the company of the respondent and his father whose Purohit hethese circumstances the inference would be that the story about the execution has been made up and that is why there are contradictions on such an important matter. In any case these contradictions hardly help to dispel the suspicion aroused by the circumstances already mentioned above.But we should have expected from a witness of this kind strict regard for truth and if, we were sure that the witness had strict regard for truth we might have believed his statement. As we have already pointed out, however this witness does not appear to have much regard for truth and tried to pose as an independent witness by denying that he was working as a lawyer for the respondent, when his son-in-law had already admitted that he was the present pleader of the respondent. In these circumstances we can place no reliance on his evidence, for if he was capable of denying his connection with the respondent he can be capable of colluding with the respondent in manufacturing the Will on signed blank papers which were admittedly available to him and others. Looking at the evidence of the three attesting witnesses and the respondent broadly, we must say that that evidence does not dispel the suspicion as to the due execution and attestation of this Will.16. The High Court was also conscious of the fact that the evidence as to the execution and attestation of the will was not very adequate, for the learned Chief Justice observed that the evidence on the point of actual execution might not be very adequate; but the view taken by the High Court was that more evidence was not necessary in view of the pleadings of the parties. In this connection the High Court relied on Dwijendra Narayan Debs acceptance of the Will in favour of the respondent. This in our opinion was not justified so far as the appellants were concerned, for an admission of Dwijendra Narayan Deb who must now be held to have put forward a forged Will could not be an added circumstance to support the inadequate evidence led by the respondent. We are further of the opinion that the High Court was not justified in excusing the inadequacy of the evidence to prove the due execution and attestation of the Will on the basis of the pleadings of the parties. It is true that the appellants did not say in so many words that the Will propounded by the respondent was a forgery as they did about the Will propounded by Dwijendra Narayan Deb; even so the appellants had put the respondent to strict proof of due and legal execution and attestation of the Will and there was an issue to that effect. This was not a case where the due and legal execution and attestation of the Will was admitted and the only disputes were that the testator had not a sound disposing state of mind or had acted under undue influence or coercion. Though the appellants did not go to the length of characterising the Will as a forgery as they did in the case of the Will propounded by Dwijendra Narayan, they certainly put the respondent to strict proof of legal and due execution and attestation of the will. In such circumstances it was the duty of the respondent, particularly in the presence of suspicious circumstances which have been noted by the High Court, to prove the due execution and attestation of the Will by satisfactory evidence which would lead the Court to the conclusion that the suspicious circumstances had been dispelled. We do not see how the evidence which has been characterised by the High Court as inadequate would suffice to dispel the suspicious circumstances which undoubtedly are present in this case. We have no hesitation in coming to the conclusion, apart from the question of registration with which we shall deal presently, that if the evidence which has been produced in this case were all the evidence available to prove the due execution and attestation of the will, there could be no doubt that the respondent had failed to satisfy the Court and dispel the suspicious circumstances which were undoubtedly present in thisis no doubt that this Will was registered on January 27, 1944 and there is an endorsement on the Will to the effect that the testator had admitted the execution of it.It is not quite clear what the High Court meant by this, namely, whether the High Court thought that these four witnesses also attested the will; but a perusal of the will transcribed in the record (Ex. 3) shows that this is not correct, for the only person who signed at the bottom of the will at the time of the visit of Arabali besides Arabali himself and the testator, was Dehiram Bora. Learned counsel for the respondent was unable to satisfy us how the High Court got the impression that four witnesses had signed at the bottom of the will presumably as a matter of attestation when the registration clerk came on commission. We must therefore proceed on the footing that the High Court was not right in the view that four persons had signed the will, whatever that may mean, when Arabali came for registration; and in so far as the High Court judgment was influenced by this circumstance, it suffers from an infirmity.19. However, let us look at what actually happened when Arabali came for the registration of the will. Arabalis own statement on this point is that he examined Chandra Narayan Deb (i.e. the testator) at Majikuchi who admitted the execution of the will. This is all that Arabali has said in this connection. There is nothing in the evidence to show that the Will was read over to the testator or was read by him before he admitted execution of it. What exactly passed between Arabali and the testator at this time has also not been given by Arabali and the exact words used by him in this connection and the exact reply of the testator are also absent from the evidence. It is true that it is broadly stated by Arabali that he examined the testator who admitted the execution of the will. That in our opinion is hardly sufficient in a case of this kind to dispel the serious suspicion which attaches to the due execution and attestation of this will. Further the evidence of Arabali is that Dehiram Bora identified the testator. That is all the part assigned by Arabali, to Dehiram Bora, besides the fact that Dehiram Bora signed at the bottom of the will thereafter. Arabali does not say that Dehiram Bora was present when the testator had admitted the execution of the Will or that the testator signed at the bottom of the will in the presence of Dehiram Bora and Dehiram Bora signed it in the presence of the testator. Of course, Arabali does say that the testator signed at the bottom of the Will in his presence, though he does not say that he signed it in the presence of the testator. We are referring to this aspect of the matter, for it has been urged that even if the execution and attestation of December 29, 1943, is open to doubt the Will must be held to be duly executed and attested before Arabali and Dehiram Bora.If therefore these two witnesses namely, Arabali and Dehiram Bora are to be treated as attesting witnesses for the purpose of S. 63 of the Indian Succession Act, (No. 39 of 1925), it is clear that they completely fail to prove due execution and attestation of the will as required by that section. So all that we come to is that there is a bald statement of Arabali to the effect that he examined the testator who admitted the execution of the will and there is the statement of Dehiram Bora that at that time he identified the testator before Arabali. It is on this that the Will was later registered by the Sub-Registrar.Therefore, if this was not a genuine Will of the testator he would have taken steps to revoke it, for he died almost 21 years after the registration of the Will. This, however, assumes that the testator knew of the existence of this Will. If he did not know of the existence of this Will there would be no question of his revoking it, however long afterwards he might have died. Now the evidence that the testator, knew of the existence of this Will consists only of what happened on December 29, 1943, and on the date when Arabali went to Majikuchi on commission in connection with the registration of the will. We have already dealt with the evidence with respect to these two dates and if that evidence is insufficient to prove due execution and attestation of the Will, as we hold it is, it would also be insufficient to show that the testator knew after the end of January, 1944 that such a Will existed. In the absence, therefore, of the knowledge of the testator about the existence of this Will, this circumstance loses all its force.23. There is no doubt that if a will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a Will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration Will dispel the doubt as to the genuineness of the will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the will did not read it over to the testator or did not bring home to him that he was admitting the execution of a will or did not satisfy himself in some other way (as, for example, by seeing the testator reading the Will) that the testator knew that it was a Will the execution of which he was admitting, the fact that the Will was registered would not be of much value. It is not unknown that registration may take place without the executant really knowing what he was registering. Law reports are full of cases in which registered Wills have not been actedTherefore, the mere fact of registration may not by itself be enough to dispel all suspicion that may attach to the execution and attestation of a Will; though the fact that there has been registration would be an important circumstance in favour of the will being genuine if the evidence as to registration establishes that the testator admitted the execution of the will after knowing that it was a Will the execution of which he washave scrutinized that evidence carefully and we must say that the evidence falls short of satisfying us in the circumstances of this case that the testator knew that the document the execution of which he was admitting before Arabali and at the bottom of which he signed was his will. Therefore we are left with the bald fact of registration which in our opinion is insufficient in the circumstances of this case to dispel the suspicious circumstances which we have enumerated above. We are therefore not satisfied about the due execution and attestation of this will by the testator and hold that the propounder has been unable to dispel the suspicious circumstances which surround the execution and attestation of this Will. In the circumstances, no letters of administration in favour of the respondent can be granted on the basis of it. | 1 | 6,202 | 2,725 | ### Instruction:
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an identifier and did not say that Arabali had put any questions to the testator about the execution of the will, and that the testator admitted the execution. In cross-examination he said that the testator signed in his presence at the bottom of the will. He however never said that the Will was read over to the testator or was read by him and that the testator admitted the execution of the Will to him and thereafter he signed the will at the bottom. Thus all that one finds is that he signed as a person who identified the testator.21. If therefore these two witnesses namely, Arabali and Dehiram Bora are to be treated as attesting witnesses for the purpose of S. 63 of the Indian Succession Act, (No. 39 of 1925), it is clear that they completely fail to prove due execution and attestation of the will as required by that section. So all that we come to is that there is a bald statement of Arabali to the effect that he examined the testator who admitted the execution of the will and there is the statement of Dehiram Bora that at that time he identified the testator before Arabali. It is on this that the Will was later registered by the Sub-Registrar.22. We may refer to one more circumstance that has been urged before us. It is said that the will undoubtedly existed in January, 1944 as evidenced by its registration. Therefore, if this was not a genuine Will of the testator he would have taken steps to revoke it, for he died almost 21 years after the registration of the Will. This, however, assumes that the testator knew of the existence of this Will. If he did not know of the existence of this Will there would be no question of his revoking it, however long afterwards he might have died. Now the evidence that the testator, knew of the existence of this Will consists only of what happened on December 29, 1943, and on the date when Arabali went to Majikuchi on commission in connection with the registration of the will. We have already dealt with the evidence with respect to these two dates and if that evidence is insufficient to prove due execution and attestation of the Will, as we hold it is, it would also be insufficient to show that the testator knew after the end of January, 1944 that such a Will existed. In the absence, therefore, of the knowledge of the testator about the existence of this Will, this circumstance loses all its force.23. There is no doubt that if a will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a Will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration Will dispel the doubt as to the genuineness of the will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the will did not read it over to the testator or did not bring home to him that he was admitting the execution of a will or did not satisfy himself in some other way (as, for example, by seeing the testator reading the Will) that the testator knew that it was a Will the execution of which he was admitting, the fact that the Will was registered would not be of much value. It is not unknown that registration may take place without the executant really knowing what he was registering. Law reports are full of cases in which registered Wills have not been acted upon : (see, for example, Vellaswamy Servai v. Sivaraman Servai, ILR 8 Rang 179 : (AIR 1930 PC 24 ), Surendra Nath v. Jnanendra Nath, AIR 1932 Cal 574 and Girja Datt Singh v. Gangotri Datt Singh, (S) AIR 1955 SC 346 . Therefore, the mere fact of registration may not by itself be enough to dispel all suspicion that may attach to the execution and attestation of a Will; though the fact that there has been registration would be an important circumstance in favour of the will being genuine if the evidence as to registration establishes that the testator admitted the execution of the will after knowing that it was a Will the execution of which he was admitting.24. The question therefore is whether in the circumstances of the present case the evidence as to registration discloses that the testator knew that he was admitting the execution of a Will when be is said to have put down his signature at the bottom of the will in the presence of Arabali. We have scrutinized that evidence carefully and we must say that the evidence falls short of satisfying us in the circumstances of this case that the testator knew that the document the execution of which he was admitting before Arabali and at the bottom of which he signed was his will. Therefore we are left with the bald fact of registration which in our opinion is insufficient in the circumstances of this case to dispel the suspicious circumstances which we have enumerated above. We are therefore not satisfied about the due execution and attestation of this will by the testator and hold that the propounder has been unable to dispel the suspicious circumstances which surround the execution and attestation of this Will. In the circumstances, no letters of administration in favour of the respondent can be granted on the basis of it.
### Response:
1
### Explanation:
him in this connection and the exact reply of the testator are also absent from the evidence. It is true that it is broadly stated by Arabali that he examined the testator who admitted the execution of the will. That in our opinion is hardly sufficient in a case of this kind to dispel the serious suspicion which attaches to the due execution and attestation of this will. Further the evidence of Arabali is that Dehiram Bora identified the testator. That is all the part assigned by Arabali, to Dehiram Bora, besides the fact that Dehiram Bora signed at the bottom of the will thereafter. Arabali does not say that Dehiram Bora was present when the testator had admitted the execution of the Will or that the testator signed at the bottom of the will in the presence of Dehiram Bora and Dehiram Bora signed it in the presence of the testator. Of course, Arabali does say that the testator signed at the bottom of the Will in his presence, though he does not say that he signed it in the presence of the testator. We are referring to this aspect of the matter, for it has been urged that even if the execution and attestation of December 29, 1943, is open to doubt the Will must be held to be duly executed and attested before Arabali and Dehiram Bora.If therefore these two witnesses namely, Arabali and Dehiram Bora are to be treated as attesting witnesses for the purpose of S. 63 of the Indian Succession Act, (No. 39 of 1925), it is clear that they completely fail to prove due execution and attestation of the will as required by that section. So all that we come to is that there is a bald statement of Arabali to the effect that he examined the testator who admitted the execution of the will and there is the statement of Dehiram Bora that at that time he identified the testator before Arabali. It is on this that the Will was later registered by the Sub-Registrar.Therefore, if this was not a genuine Will of the testator he would have taken steps to revoke it, for he died almost 21 years after the registration of the Will. This, however, assumes that the testator knew of the existence of this Will. If he did not know of the existence of this Will there would be no question of his revoking it, however long afterwards he might have died. Now the evidence that the testator, knew of the existence of this Will consists only of what happened on December 29, 1943, and on the date when Arabali went to Majikuchi on commission in connection with the registration of the will. We have already dealt with the evidence with respect to these two dates and if that evidence is insufficient to prove due execution and attestation of the Will, as we hold it is, it would also be insufficient to show that the testator knew after the end of January, 1944 that such a Will existed. In the absence, therefore, of the knowledge of the testator about the existence of this Will, this circumstance loses all its force.23. There is no doubt that if a will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a Will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration Will dispel the doubt as to the genuineness of the will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the will did not read it over to the testator or did not bring home to him that he was admitting the execution of a will or did not satisfy himself in some other way (as, for example, by seeing the testator reading the Will) that the testator knew that it was a Will the execution of which he was admitting, the fact that the Will was registered would not be of much value. It is not unknown that registration may take place without the executant really knowing what he was registering. Law reports are full of cases in which registered Wills have not been actedTherefore, the mere fact of registration may not by itself be enough to dispel all suspicion that may attach to the execution and attestation of a Will; though the fact that there has been registration would be an important circumstance in favour of the will being genuine if the evidence as to registration establishes that the testator admitted the execution of the will after knowing that it was a Will the execution of which he washave scrutinized that evidence carefully and we must say that the evidence falls short of satisfying us in the circumstances of this case that the testator knew that the document the execution of which he was admitting before Arabali and at the bottom of which he signed was his will. Therefore we are left with the bald fact of registration which in our opinion is insufficient in the circumstances of this case to dispel the suspicious circumstances which we have enumerated above. We are therefore not satisfied about the due execution and attestation of this will by the testator and hold that the propounder has been unable to dispel the suspicious circumstances which surround the execution and attestation of this Will. In the circumstances, no letters of administration in favour of the respondent can be granted on the basis of it.
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Rajputana Mining Agencies Ltd Vs. Union Of India And Another | for a period prior to that date could be demanded. This Court in an appeal by the Department against the decision of the High Court of Rajasthan, which had accepted the contention, held that the tax was leviable. It is not necessary to give the details of the decisions on that occasion. The judgment of this Court is reported in The Union of India v. Madan Gopal Kabra, 1954 SCR 541 : (AIR 1954 SC 158 ).4. The present appellant and fourteen others filed petitions under Art. 226 of the Constitution, urging fresh grounds by a later amendment. Their contention was that S. 14 (2) (c) of the Indian Income-tax Act, as it stood on April 1, 1950, granted an exemption, and that this exemption was not affected by the amendment of the said provision in 1953 even though the amendment was retrospective from April 1, 1950, unless the Finance Act, 1950, which applied the Income-tax Act to this area was also amended. This contention was not accepted by the High Court which dismissed the petition under Art. 226, holding inter alia that this point was also decided by this Court against Madan Gopal Kabra.5. In this appeal, this point alone is argued, and it is contended that the point is still open for decision. Section 14 (2) (c), as it stood before the amendment in 1953, read as follows:"The tax shall not be payable by an assessee-(c) in respect of any income, profits or gains accruing or arising to him within Part B State unless such income, profits or gains are received or deemed to be received in or are brought into the taxable territories in the previous year by or on behalf of the assessee, or are assessable under section 12-B or section 42.The amendment provided :-"In section 14 of the principal Act in clause (c) of sub-section (2), for the words and letter Part B State the words the State of Jammu and Kashimir shall be substituted and shall be deemed to have been substituted with effect from the 1st day of April, 1950.6. The result of this amendment was described by this Court in Kabras case, 1954 SCR 541 : (AIR 1954 S C 158) to be as follows:"It may be mentioned here that the exemption from tax under S. 14 (2) (c) of the Indian Act of income accruing within Part B State was abrogated, except as regards the State of Jammu and Kashimir, by the amendment of that provision with effect from the first day of April, 1950.7. Mr. N. C. Chatterjee appearing for the appellant contends that the point cannot be considered to have been finally decided, and that the remark is descriptive only of what the Parliament had purported to do. He claims that the point can and should be reconsidered. In support of his contention he urges that the effect of the passing of the Indian Finance Act, 1950, and the application of the Indian Income-tax Act to Rajasthan and other Part B States was to incorporate the Indian Income-tax Act by reference in the Indian Finance Act with such modifications and amendments as were then made. Any subsequent amendment of the Indian Income-tax Act had no effect on the original Act as incorporated by reference in the Indian Finance Act, unless the latter was suitably amended also. The argument which did not find favour in Kabras case, 1954 SCR 541 : (AIR 1954 S C 158) was again advanced, though in another form. It is that the amendment operates from April 1, 1950, and that the income accrued prior to April 1, 1950, and it was still exempt, because the exemption was withdrawn only from April 1, 1950.8. In our opinion, both the arguments have no substance, and the position indicated by this Court in the passage cited earlier represents the true state of the law. To begin with, the exemption is in respect of liability to tax in any year of assessment, and the exemption in the assessment year 1950-51 was in regard to the income in the previous year. For the same reason, the withdrawal of the exemption in the assessment year 1950-51 conversely affected the income of the previous year, 1949-50 which is the subject-matter of tax in this case. The next argument misconceives the nature of the Indian Finance Act, 1950. By that Act, the Indian Income-tax Act was applied, but the Income-tax Act was not incorporated by reference in the Indian Finance Act to become a part of it. The application of the Indian Income-tax Act made Rajasthan a taxable territory subject to the Indian Income-tax law, and Parliament was competent to enact a new law for the area, just as it did for the whole of the rest of India. The fiction in the amendment made the exemption to disappear as if it had never been granted, and unless there was a saving, the amendment must operate to obliterate the exemption. In fact, the whole purpose and intent of the amendment was to reach this result from the assessment year 1950-51 onwards, and there could be no saving. The argument assumes the premises that the Income-tax Act was incorporated in the Indian Finance Act, 1950, but there is neither precedent not warrant for the assumption that when one Act applies another Act to some territory, the latter Act must be taken to be incorporated in the former Act. It may be otherwise, if there were words to show that the earlier Act is to be deemed to be re-enacted by the new Act. The Indian Finance Act, 1950, was concerned with the application of the Indian Income-tax Act to this area, which it did by amending the definition of taxable territory in the Indian Income-tax Act and by applying that Act to the territory. Thereafter, the Indian Parliament could amend the Income-tax Act retrospectively, and the amendment would apply also to the new taxable territory. In our opinion, both the arguments are not valid. | 0[ds]8. In our opinion, both the arguments have no substance, and the position indicated by this Court in the passage cited earlier represents the true state of the law. To begin with, the exemption is in respect of liability to tax in any year of assessment, and the exemption in the assessment year 1950-51 was in regard to the income in the previous year. For the same reason, the withdrawal of the exemption in the assessment year 1950-51 conversely affected the income of the previous year, 1949-50 which is the subject-matter of tax in this case. The next argument misconceives the nature of the Indian Finance Act, 1950. By that Act, the Indian Income-tax Act was applied, but the Income-tax Act was not incorporated by reference in the Indian Finance Act to become a part of it. The application of the Indian Income-tax Act made Rajasthan a taxable territory subject to the Indian Income-tax law, and Parliament was competent to enact a new law for the area, just as it did for the whole of the rest of India. The fiction in the amendment made the exemption to disappear as if it had never been granted, and unless there was a saving, the amendment must operate to obliterate the exemption. In fact, the whole purpose and intent of the amendment was to reach this result from the assessment year 1950-51 onwards, and there could be no saving. The argument assumes the premises that the Income-tax Act was incorporated in the Indian Finance Act, 1950, but there is neither precedent not warrant for the assumption that when one Act applies another Act to some territory, the latter Act must be taken to be incorporated in the former Act. It may be otherwise, if there were words to show that the earlier Act is to be deemed to be re-enacted by the new Act. The Indian Finance Act, 1950, was concerned with the application of the Indian Income-tax Act to this area, which it did by amending the definition of taxable territory in the Indian Income-tax Act and by applying that Act to the territory. Thereafter, the Indian Parliament could amend the Income-tax Act retrospectively, and the amendment would apply also to the new taxable territory. In our opinion, both the arguments are not valid. | 0 | 1,439 | 426 | ### 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:
for a period prior to that date could be demanded. This Court in an appeal by the Department against the decision of the High Court of Rajasthan, which had accepted the contention, held that the tax was leviable. It is not necessary to give the details of the decisions on that occasion. The judgment of this Court is reported in The Union of India v. Madan Gopal Kabra, 1954 SCR 541 : (AIR 1954 SC 158 ).4. The present appellant and fourteen others filed petitions under Art. 226 of the Constitution, urging fresh grounds by a later amendment. Their contention was that S. 14 (2) (c) of the Indian Income-tax Act, as it stood on April 1, 1950, granted an exemption, and that this exemption was not affected by the amendment of the said provision in 1953 even though the amendment was retrospective from April 1, 1950, unless the Finance Act, 1950, which applied the Income-tax Act to this area was also amended. This contention was not accepted by the High Court which dismissed the petition under Art. 226, holding inter alia that this point was also decided by this Court against Madan Gopal Kabra.5. In this appeal, this point alone is argued, and it is contended that the point is still open for decision. Section 14 (2) (c), as it stood before the amendment in 1953, read as follows:"The tax shall not be payable by an assessee-(c) in respect of any income, profits or gains accruing or arising to him within Part B State unless such income, profits or gains are received or deemed to be received in or are brought into the taxable territories in the previous year by or on behalf of the assessee, or are assessable under section 12-B or section 42.The amendment provided :-"In section 14 of the principal Act in clause (c) of sub-section (2), for the words and letter Part B State the words the State of Jammu and Kashimir shall be substituted and shall be deemed to have been substituted with effect from the 1st day of April, 1950.6. The result of this amendment was described by this Court in Kabras case, 1954 SCR 541 : (AIR 1954 S C 158) to be as follows:"It may be mentioned here that the exemption from tax under S. 14 (2) (c) of the Indian Act of income accruing within Part B State was abrogated, except as regards the State of Jammu and Kashimir, by the amendment of that provision with effect from the first day of April, 1950.7. Mr. N. C. Chatterjee appearing for the appellant contends that the point cannot be considered to have been finally decided, and that the remark is descriptive only of what the Parliament had purported to do. He claims that the point can and should be reconsidered. In support of his contention he urges that the effect of the passing of the Indian Finance Act, 1950, and the application of the Indian Income-tax Act to Rajasthan and other Part B States was to incorporate the Indian Income-tax Act by reference in the Indian Finance Act with such modifications and amendments as were then made. Any subsequent amendment of the Indian Income-tax Act had no effect on the original Act as incorporated by reference in the Indian Finance Act, unless the latter was suitably amended also. The argument which did not find favour in Kabras case, 1954 SCR 541 : (AIR 1954 S C 158) was again advanced, though in another form. It is that the amendment operates from April 1, 1950, and that the income accrued prior to April 1, 1950, and it was still exempt, because the exemption was withdrawn only from April 1, 1950.8. In our opinion, both the arguments have no substance, and the position indicated by this Court in the passage cited earlier represents the true state of the law. To begin with, the exemption is in respect of liability to tax in any year of assessment, and the exemption in the assessment year 1950-51 was in regard to the income in the previous year. For the same reason, the withdrawal of the exemption in the assessment year 1950-51 conversely affected the income of the previous year, 1949-50 which is the subject-matter of tax in this case. The next argument misconceives the nature of the Indian Finance Act, 1950. By that Act, the Indian Income-tax Act was applied, but the Income-tax Act was not incorporated by reference in the Indian Finance Act to become a part of it. The application of the Indian Income-tax Act made Rajasthan a taxable territory subject to the Indian Income-tax law, and Parliament was competent to enact a new law for the area, just as it did for the whole of the rest of India. The fiction in the amendment made the exemption to disappear as if it had never been granted, and unless there was a saving, the amendment must operate to obliterate the exemption. In fact, the whole purpose and intent of the amendment was to reach this result from the assessment year 1950-51 onwards, and there could be no saving. The argument assumes the premises that the Income-tax Act was incorporated in the Indian Finance Act, 1950, but there is neither precedent not warrant for the assumption that when one Act applies another Act to some territory, the latter Act must be taken to be incorporated in the former Act. It may be otherwise, if there were words to show that the earlier Act is to be deemed to be re-enacted by the new Act. The Indian Finance Act, 1950, was concerned with the application of the Indian Income-tax Act to this area, which it did by amending the definition of taxable territory in the Indian Income-tax Act and by applying that Act to the territory. Thereafter, the Indian Parliament could amend the Income-tax Act retrospectively, and the amendment would apply also to the new taxable territory. In our opinion, both the arguments are not valid.
### Response:
0
### Explanation:
8. In our opinion, both the arguments have no substance, and the position indicated by this Court in the passage cited earlier represents the true state of the law. To begin with, the exemption is in respect of liability to tax in any year of assessment, and the exemption in the assessment year 1950-51 was in regard to the income in the previous year. For the same reason, the withdrawal of the exemption in the assessment year 1950-51 conversely affected the income of the previous year, 1949-50 which is the subject-matter of tax in this case. The next argument misconceives the nature of the Indian Finance Act, 1950. By that Act, the Indian Income-tax Act was applied, but the Income-tax Act was not incorporated by reference in the Indian Finance Act to become a part of it. The application of the Indian Income-tax Act made Rajasthan a taxable territory subject to the Indian Income-tax law, and Parliament was competent to enact a new law for the area, just as it did for the whole of the rest of India. The fiction in the amendment made the exemption to disappear as if it had never been granted, and unless there was a saving, the amendment must operate to obliterate the exemption. In fact, the whole purpose and intent of the amendment was to reach this result from the assessment year 1950-51 onwards, and there could be no saving. The argument assumes the premises that the Income-tax Act was incorporated in the Indian Finance Act, 1950, but there is neither precedent not warrant for the assumption that when one Act applies another Act to some territory, the latter Act must be taken to be incorporated in the former Act. It may be otherwise, if there were words to show that the earlier Act is to be deemed to be re-enacted by the new Act. The Indian Finance Act, 1950, was concerned with the application of the Indian Income-tax Act to this area, which it did by amending the definition of taxable territory in the Indian Income-tax Act and by applying that Act to the territory. Thereafter, the Indian Parliament could amend the Income-tax Act retrospectively, and the amendment would apply also to the new taxable territory. In our opinion, both the arguments are not valid.
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Punjab Rao Vs. D. P. Meshram & Others | who had been converted taken according to the dates of conversion. There is nothing to show that it was obligatory on every person who had been converted to sign in the register. Moreover, a signature in such a register would at best be only a piece of evidence of the fact of conversion and nothing more. Absence of a persons signature in the register would not necessarily negative his being at all converted a Buddhism. Then it is said that only a Bhikku is entitled to convert non-Buddhists to Buddhism. There is abundant evidence on record that at the conversion ceremony held on October 14, 1956 Dr. Ambedkar had told the new Buddhists that any one who had become a Buddhist could admit others to the fold of Buddhism. Apart from that we have been shown no authority to the effect that a person cannot become a Buddhist unless he is converted to Buddhism by aBhikku. Buddism was in essence also a protest against orthodoxy and the power of the priesthood. It would, therefore, be strange to say that for a non Buddhist to become a Buddhist strict compliance with rituals is necessary. It is in evidence that at every conversion three vows had been repeated thrice. Five precepts had also to be repeated by those who offered themselves for conversion. This was exactly what was done by Dr. Ambedkar, his wife and others at the mass meeting on October 14, 1956 and it is not suggested that what they did was inadequate and so they cannot be deemed to have embraced Buddhism from that date. It is, therefore, futile to say that others who went through the same procedure had not become Buddhists merely because no Bhikku had officiated at the function.17. What cl. (3) of the Constitution (Scheduled Castes) Order, 1950 contemplates is that for a person to be treated as one belonging to a Scheduled Caste within the meaning of that order he must be one who professes either Hindu or Sikh religion. The High Court following its earlier decision in Narayan Waktu v. Panjabrao, AIR 1958 Bom 296 has said that the meaning of the phrase "professes a religion" in the aforementioned provision is " to enter publicly into a religious state" and that for this purpose a mere declaration by a person that he has ceased to belong to a particular religion and embraced another religion would not be sufficient. The meanings of the word "profess" have been given thus in Websters New World dictionary : "to avow publicly to make an open declaration of .... to declare ones belief in: as to profess Christ. To accept into a religious order." The meanings given in the Shorter Oxford Dictionary are more or less the same. It seems to us that the meaning" to declare ones belief in: as to profess Christ" is one which we have to bear in mind while construing the aforesaid order because it is this which bears upon religious belief and consequently also upon a change in religious belief. It would thus follow that a declaration of ones belief must necessarily mean a declaration in such a way that it would be known to those whom it may interest. Therefore, if a public declaration is made by a person that he has ceased to belong to his old religion and has accepted another religion he will be taken as professing the other religion. In the face of such an open declaration it would be idle to enquire further as to whether the conversion to another religion was efficacious. The word "profess" in the Presidential Order appears to have been used in the sense of an open declaration or practice by a person of the Hindu (or the Sikh) religion. Where, therefore, a person say , on the contrary that he has ceased to be a Hindu he cannot derive any benefit from that Order.18. Finally it is argued that the word Hindu is comprehensive enough to include a Buddhist and in this connection our attention is invited to Explanation 11 to cl. (2) of Art. 25 of the Constitution. Clause (1) of Art. 25 recognises, amongst other things, freedom to practise and, propagate religion. Sub-clause (b) of cl. (2) runs thus :."Nothing in this article shall affect the operation of any existing law or prevent the State from making any, law .* * * * *(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus."Explnation 11 read; thus :"In sub-clause (b) of cluase (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly." )The definition of Hindu is expanded for the special purposes of sub-cl. (b) of cl. (2) of Art. 25 and for no other. Paragraph 3 of the Constitution (Scheduled Castes) Order reads thus :"Notwithstanding anything contained in paragraph 2, no person who profess a religion different from the Hindu or the Sikh religion shall be deemed to be a member of a Scheduled Caste.19. If it was intended that the word "Hindu" used in this paragraph should have a wide meaning similar to that in Explanation II just quoted there would have been no need to make a mention of the Sikh religion. From the fact that a special mention is made of the Sikh religion it would follow that the word "Hindu" is used in the narrower sense of the orthodox Hindu religion which recognises castes and contains injuctions based on caste distinctions.20. For the foregoing reasons we are satisfied that respondent No. 1 had ceased to be a Hindu at the date of his nomination and that consequently he was ineligible to be a candidate for election from a constituency reserved for members of Scheduled Castes. In the circumstances the Tribunal was right in setting aside his election. | 1[ds]This part of the evidence of this witness has not been challenged in cross-examination. There is no reason why this evidence ought not to be accepted, particularly when some of the essential facts deposed to by the witnesses have been admitted by respondent No. 1 himself. If we accept this evidence then the only conclusion which can emerge is that respondent No. 1 had ceased to be a Hindu. For, however great the admiration or regard a Hindu may have for Lord Buddha, he would shudder at the idea of desecrating a Shiva Linga in this manner or even of converting what was once a Shiva temple into a Buddhist temple. In our opinion, this would be the strongest circumstances corroborating the evidence of eye-witnesses regarding the conversion of respondent No. 1 tois true that. R.W. 5 Waman Godbole speaks of some register but his evidence clearly shows that the register is not regularly maintained nor are the signatures of persons who had been converted taken according to the dates of conversion. There is nothing to show that it was obligatory on every person who had been converted to sign in the register. Moreover, a signature in such a register would at best be only a piece of evidence of the fact of conversion and nothing more. Absence of a persons signature in the register would not necessarily negative his being at all converted a Buddhism. Then it is said that only a Bhikku is entitled to convert non-Buddhists to Buddhism. There is abundant evidence on record that at the conversion ceremony held on October 14, 1956 Dr. Ambedkar had told the new Buddhists that any one who had become a Buddhist could admit others to the fold of Buddhism. Apart from that we have been shown no authority to the effect that a person cannot become a Buddhist unless he is converted to Buddhism by aBhikku. Buddism was in essence also a protest against orthodoxy and the power of the priesthood. It would, therefore, be strange to say that for a non Buddhist to become a Buddhist strict compliance with rituals is necessary. It is in evidence that at every conversion three vows had been repeated thrice. Five precepts had also to be repeated by those who offered themselves for conversion. This was exactly what was done by Dr. Ambedkar, his wife and others at the mass meeting on October 14, 1956 and it is not suggested that what they did was inadequate and so they cannot be deemed to have embraced Buddhism from that date. It is, therefore, futile to say that others who went through the same procedure had not become Buddhists merely because no Bhikku had officiated at the function.What cl. (3) of the Constitution (Scheduled Castes) Order, 1950 contemplates is that for a person to be treated as one belonging to a Scheduled Caste within the meaning of that order he must be one who professes either Hindu or Sikh religion. The High Court following its earlier decision in Narayan Waktu v. Panjabrao, AIR 1958 Bom 296 has said that the meaning of the phrase "professes a religion" in the aforementioned provision is " to enter publicly into a religious state" and that for this purpose a mere declaration by a person that he has ceased to belong to a particular religion and embraced another religion would not be sufficient. The meanings of the word "profess" have been given thus in Websters New World dictionary : "to avow publicly to make an open declaration of .... to declare ones belief in: as to profess Christ. To accept into a religious order." The meanings given in the Shorter Oxford Dictionary are more or less the same. It seems to us that the meaning" to declare ones belief in: as to profess Christ" is one which we have to bear in mind while construing the aforesaid order because it is this which bears upon religious belief and consequently also upon a change in religious belief. It would thus follow that a declaration of ones belief must necessarily mean a declaration in such a way that it would be known to those whom it may interest. Therefore, if a public declaration is made by a person that he has ceased to belong to his old religion and has accepted another religion he will be taken as professing the other religion. In the face of such an open declaration it would be idle to enquire further as to whether the conversion to another religion was efficacious. The word "profess" in the Presidential Order appears to have been used in the sense of an open declaration or practice by a person of the Hindu (or the Sikh) religion. Where, therefore, a person say , on the contrary that he has ceased to be a Hindu he cannot derive any benefit from thatit was intended that the word "Hindu" used in this paragraph should have a wide meaning similar to that in Explanation II just quoted there would have been no need to make a mention of the Sikh religion. From the fact that a special mention is made of the Sikh religion it would follow that the word "Hindu" is used in the narrower sense of the orthodox Hindu religion which recognises castes and contains injuctions based on caste distinctions.For the foregoing reasons we are satisfied that respondent No. 1 had ceased to be a Hindu at the date of his nomination and that consequently he was ineligible to be a candidate for election from a constituency reserved for members of Scheduled Castes. In the circumstances the Tribunal was right in setting aside his election. | 1 | 4,913 | 1,028 | ### 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:
who had been converted taken according to the dates of conversion. There is nothing to show that it was obligatory on every person who had been converted to sign in the register. Moreover, a signature in such a register would at best be only a piece of evidence of the fact of conversion and nothing more. Absence of a persons signature in the register would not necessarily negative his being at all converted a Buddhism. Then it is said that only a Bhikku is entitled to convert non-Buddhists to Buddhism. There is abundant evidence on record that at the conversion ceremony held on October 14, 1956 Dr. Ambedkar had told the new Buddhists that any one who had become a Buddhist could admit others to the fold of Buddhism. Apart from that we have been shown no authority to the effect that a person cannot become a Buddhist unless he is converted to Buddhism by aBhikku. Buddism was in essence also a protest against orthodoxy and the power of the priesthood. It would, therefore, be strange to say that for a non Buddhist to become a Buddhist strict compliance with rituals is necessary. It is in evidence that at every conversion three vows had been repeated thrice. Five precepts had also to be repeated by those who offered themselves for conversion. This was exactly what was done by Dr. Ambedkar, his wife and others at the mass meeting on October 14, 1956 and it is not suggested that what they did was inadequate and so they cannot be deemed to have embraced Buddhism from that date. It is, therefore, futile to say that others who went through the same procedure had not become Buddhists merely because no Bhikku had officiated at the function.17. What cl. (3) of the Constitution (Scheduled Castes) Order, 1950 contemplates is that for a person to be treated as one belonging to a Scheduled Caste within the meaning of that order he must be one who professes either Hindu or Sikh religion. The High Court following its earlier decision in Narayan Waktu v. Panjabrao, AIR 1958 Bom 296 has said that the meaning of the phrase "professes a religion" in the aforementioned provision is " to enter publicly into a religious state" and that for this purpose a mere declaration by a person that he has ceased to belong to a particular religion and embraced another religion would not be sufficient. The meanings of the word "profess" have been given thus in Websters New World dictionary : "to avow publicly to make an open declaration of .... to declare ones belief in: as to profess Christ. To accept into a religious order." The meanings given in the Shorter Oxford Dictionary are more or less the same. It seems to us that the meaning" to declare ones belief in: as to profess Christ" is one which we have to bear in mind while construing the aforesaid order because it is this which bears upon religious belief and consequently also upon a change in religious belief. It would thus follow that a declaration of ones belief must necessarily mean a declaration in such a way that it would be known to those whom it may interest. Therefore, if a public declaration is made by a person that he has ceased to belong to his old religion and has accepted another religion he will be taken as professing the other religion. In the face of such an open declaration it would be idle to enquire further as to whether the conversion to another religion was efficacious. The word "profess" in the Presidential Order appears to have been used in the sense of an open declaration or practice by a person of the Hindu (or the Sikh) religion. Where, therefore, a person say , on the contrary that he has ceased to be a Hindu he cannot derive any benefit from that Order.18. Finally it is argued that the word Hindu is comprehensive enough to include a Buddhist and in this connection our attention is invited to Explanation 11 to cl. (2) of Art. 25 of the Constitution. Clause (1) of Art. 25 recognises, amongst other things, freedom to practise and, propagate religion. Sub-clause (b) of cl. (2) runs thus :."Nothing in this article shall affect the operation of any existing law or prevent the State from making any, law .* * * * *(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus."Explnation 11 read; thus :"In sub-clause (b) of cluase (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly." )The definition of Hindu is expanded for the special purposes of sub-cl. (b) of cl. (2) of Art. 25 and for no other. Paragraph 3 of the Constitution (Scheduled Castes) Order reads thus :"Notwithstanding anything contained in paragraph 2, no person who profess a religion different from the Hindu or the Sikh religion shall be deemed to be a member of a Scheduled Caste.19. If it was intended that the word "Hindu" used in this paragraph should have a wide meaning similar to that in Explanation II just quoted there would have been no need to make a mention of the Sikh religion. From the fact that a special mention is made of the Sikh religion it would follow that the word "Hindu" is used in the narrower sense of the orthodox Hindu religion which recognises castes and contains injuctions based on caste distinctions.20. For the foregoing reasons we are satisfied that respondent No. 1 had ceased to be a Hindu at the date of his nomination and that consequently he was ineligible to be a candidate for election from a constituency reserved for members of Scheduled Castes. In the circumstances the Tribunal was right in setting aside his election.
### Response:
1
### Explanation:
This part of the evidence of this witness has not been challenged in cross-examination. There is no reason why this evidence ought not to be accepted, particularly when some of the essential facts deposed to by the witnesses have been admitted by respondent No. 1 himself. If we accept this evidence then the only conclusion which can emerge is that respondent No. 1 had ceased to be a Hindu. For, however great the admiration or regard a Hindu may have for Lord Buddha, he would shudder at the idea of desecrating a Shiva Linga in this manner or even of converting what was once a Shiva temple into a Buddhist temple. In our opinion, this would be the strongest circumstances corroborating the evidence of eye-witnesses regarding the conversion of respondent No. 1 tois true that. R.W. 5 Waman Godbole speaks of some register but his evidence clearly shows that the register is not regularly maintained nor are the signatures of persons who had been converted taken according to the dates of conversion. There is nothing to show that it was obligatory on every person who had been converted to sign in the register. Moreover, a signature in such a register would at best be only a piece of evidence of the fact of conversion and nothing more. Absence of a persons signature in the register would not necessarily negative his being at all converted a Buddhism. Then it is said that only a Bhikku is entitled to convert non-Buddhists to Buddhism. There is abundant evidence on record that at the conversion ceremony held on October 14, 1956 Dr. Ambedkar had told the new Buddhists that any one who had become a Buddhist could admit others to the fold of Buddhism. Apart from that we have been shown no authority to the effect that a person cannot become a Buddhist unless he is converted to Buddhism by aBhikku. Buddism was in essence also a protest against orthodoxy and the power of the priesthood. It would, therefore, be strange to say that for a non Buddhist to become a Buddhist strict compliance with rituals is necessary. It is in evidence that at every conversion three vows had been repeated thrice. Five precepts had also to be repeated by those who offered themselves for conversion. This was exactly what was done by Dr. Ambedkar, his wife and others at the mass meeting on October 14, 1956 and it is not suggested that what they did was inadequate and so they cannot be deemed to have embraced Buddhism from that date. It is, therefore, futile to say that others who went through the same procedure had not become Buddhists merely because no Bhikku had officiated at the function.What cl. (3) of the Constitution (Scheduled Castes) Order, 1950 contemplates is that for a person to be treated as one belonging to a Scheduled Caste within the meaning of that order he must be one who professes either Hindu or Sikh religion. The High Court following its earlier decision in Narayan Waktu v. Panjabrao, AIR 1958 Bom 296 has said that the meaning of the phrase "professes a religion" in the aforementioned provision is " to enter publicly into a religious state" and that for this purpose a mere declaration by a person that he has ceased to belong to a particular religion and embraced another religion would not be sufficient. The meanings of the word "profess" have been given thus in Websters New World dictionary : "to avow publicly to make an open declaration of .... to declare ones belief in: as to profess Christ. To accept into a religious order." The meanings given in the Shorter Oxford Dictionary are more or less the same. It seems to us that the meaning" to declare ones belief in: as to profess Christ" is one which we have to bear in mind while construing the aforesaid order because it is this which bears upon religious belief and consequently also upon a change in religious belief. It would thus follow that a declaration of ones belief must necessarily mean a declaration in such a way that it would be known to those whom it may interest. Therefore, if a public declaration is made by a person that he has ceased to belong to his old religion and has accepted another religion he will be taken as professing the other religion. In the face of such an open declaration it would be idle to enquire further as to whether the conversion to another religion was efficacious. The word "profess" in the Presidential Order appears to have been used in the sense of an open declaration or practice by a person of the Hindu (or the Sikh) religion. Where, therefore, a person say , on the contrary that he has ceased to be a Hindu he cannot derive any benefit from thatit was intended that the word "Hindu" used in this paragraph should have a wide meaning similar to that in Explanation II just quoted there would have been no need to make a mention of the Sikh religion. From the fact that a special mention is made of the Sikh religion it would follow that the word "Hindu" is used in the narrower sense of the orthodox Hindu religion which recognises castes and contains injuctions based on caste distinctions.For the foregoing reasons we are satisfied that respondent No. 1 had ceased to be a Hindu at the date of his nomination and that consequently he was ineligible to be a candidate for election from a constituency reserved for members of Scheduled Castes. In the circumstances the Tribunal was right in setting aside his election.
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C.T. Ltd., & Anr Vs. Commercial Tax Officer & Ors | commission agency charges and certain out of pocket expenses, and in the event of any loss his right to be indemnified by the principal." * 11. The learned counsel for the appellants drew our attention to the Tea Export Licence held by the appellants, which was specific for the export of 550 M/tonnes of tea to Iran. This licence was requisite under the provisions of Section 17 of the Tea Act, 1953. Our attention was drawn to the invoice issued by the appellants, which stated that the tea had been sold to the foreign buyers and it was signed by the appellants after stating "A/c. The State Trading Corporation of India Ltd.". The Bill of Lading issued in respect of the tea by the Irano-Hind Shipping Company Ltd. showed the appellants to be the shippers; the words "A/c. The State Trading Corporation of India Ltd." were typed immediately after the appellants name and address in the column shipper only to identify the tea with the contract between the Iranian buyer and STC. The learned counsel drew our attention to the fact that the advantage of duty drawback in respect of the aforesaid contracts had been received by the appellants. In his submission, the property in the tea had not passed from the appellants to STC. The purchase of the tea by the appellants at the auctions was, therefore, the penultimate sale in the course of export and, therefore, exempt from the levy of sales tax by the provisions of Section 5(3). 12. The learned counsel for the respondent Sales Tax authorities submitted that the export sale covered by Section 5(1) was the sale of tea by STC to the Iranian buyer, the penultimate sale in the course of export was the sale of tea by the appellant to STC, which was covered by the provisions of Section 5(3); therefore, the purchase by the appellants of the tea at the auctions was eligible to sales tax. 13. The learned counsel for the respondents drew our attention to the judgment of this Court in Mohd. Serajuddin v. State of Orissa [ 1975 (2) SCC 47 : 1975 SCC(Tax) 269 : 1975 (36) STC 136 ]. This was a case in which, admittedly, the Indian company had sold the goods to STC. The situation, therefore, was entirely different and the judgment has no application to the present case, where the contention on behalf of the appellants is that STC was only the agent of the appellants. We should also note that the judgment in Mohd. Serajuddin case [ 1975 (2) SCC 47 : 1975 SCC(Tax) 269 : 1975 (36) STC 136 ] led to the introduction of sub-section (3) in Section 5 (see Statement of Objects and Reasons thereof) so that the judgment does not reflect the law as it now stands. 14. The learned counsel for the respondents pointed out that in the contract between the appellants and STC, the appellants were referred to as the shipper not as the seller, whereas the Iranian buyer was referred to as the buyer. Emphasis was laid upon the fact that all documents were required to be prepared by the appellants marked "A/c STC" in all relevant places and these were to be forwarded to the STC for negotiation. It was pointed out that the contract contemplated disputes between the Iranian buyer and STC and not between the Iranian buyer and the appellants. The learned counsel for the respondents referred to the Bill of Lading and submitted that it had been endorsed in favour of STC and that, by reason thereof, the property in tea had passed to the STC. The endorsement was by the typing of the words "A/c. The State Trading Corporation of India Ltd." after the name and address of the appellants in the column shipper upon the Bill of Lading. 15. In our view, no term in the contract between the appellants and STC clearly contemplates a sale, that is, the transfer of property in tea from the appellants to STC. Such indication as there is to the contrary, particularly the requirement that the appellants should prepare all documents required for negotiation and the "sellers official invoice ... should be in 5 copies". The requirement that the words "A/c STC" be used was only to enable the Iranian buyer to identify the tea as being sent in fulfilment of the obligation under the contract between STC and itself. 16. The manner in which the contract between the appellants and STC was executed reinforces our view. The Tea Export Licence for the tea was that of the appellants. The invoice of the appellants showed the Iranian buyer against the column "Sold To", and no objection in this regard was raised by STC. The duty drawback benefit accrued entirely to the appellants. The Bill of Lading issued by the Irano-Hind Shipping Co. Ltd. showed the Iranian buyers Tehran bank as consignee of the tea shipped by the appellants. 17. Certainly, there is no endorsement on the Bill of Lading in favour of STC that would suggest transference to it of title in the tea. The typing of the words "A/c. The State Trading Corporation of India" below the name and address of the appellants against the column shipper does not constitute an endorsement. There was no endorsement upon the Bill of Lading signed by or on behalf of the Tehran bank, which is the consignee, or the Iranian buyer. 18. There is, therefore, nothing in the contract between the appellants and STC or in the manner of its execution that establishes that there was a transfer of the property in tea by the appellants to STC before it was transferred to the Iranian buyer. Hence, the purchase of the tea by the appellants at the auctions in fulfilment of the export obligation to the Iranian buyer was the penultimate sale in the course of export and covered by the terms of Section 5(3). It was, accordingly, exempt from the payment of sales tax | 1[ds]15. In our view, no term in the contract between the appellants and STC clearly contemplates a sale, that is, the transfer of property in tea from the appellants to STC. Such indication as there is to the contrary, particularly the requirement that the appellants should prepare all documents required for negotiation and the "sellers official invoice ... should be in 5 copies". The requirement that the words "A/c STC" be used was only to enable the Iranian buyer to identify the tea as being sent in fulfilment of the obligation under the contract between STC and itself16. The manner in which the contract between the appellants and STC was executed reinforces our view. The Tea Export Licence for the tea was that of the appellants. The invoice of the appellants showed the Iranian buyer against the column "Sold To", and no objection in this regard was raised by STC. The duty drawback benefit accrued entirely to the appellants. The Bill of Lading issued by the Irano-Hind Shipping Co. Ltd. showed the Iranian buyers Tehran bank as consignee of the tea shipped by the appellants17. Certainly, there is no endorsement on the Bill of Lading in favour of STC that would suggest transference to it of title in the tea. The typing of the words "A/c. The State Trading Corporation of India" below the name and address of the appellants against the column shipper does not constitute an endorsement. There was no endorsement upon the Bill of Lading signed by or on behalf of the Tehran bank, which is the consignee, or the Iranian buyer18. There is, therefore, nothing in the contract between the appellants and STC or in the manner of its execution that establishes that there was a transfer of the property in tea by the appellants to STC before it was transferred to the Iranian buyer. Hence, the purchase of the tea by the appellants at the auctions in fulfilment of the export obligation to the Iranian buyer was the penultimate sale in the course of export and covered by the terms of Section 5(3). It was, accordingly, exempt from the payment of sales tax | 1 | 3,096 | 401 | ### Instruction:
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commission agency charges and certain out of pocket expenses, and in the event of any loss his right to be indemnified by the principal." * 11. The learned counsel for the appellants drew our attention to the Tea Export Licence held by the appellants, which was specific for the export of 550 M/tonnes of tea to Iran. This licence was requisite under the provisions of Section 17 of the Tea Act, 1953. Our attention was drawn to the invoice issued by the appellants, which stated that the tea had been sold to the foreign buyers and it was signed by the appellants after stating "A/c. The State Trading Corporation of India Ltd.". The Bill of Lading issued in respect of the tea by the Irano-Hind Shipping Company Ltd. showed the appellants to be the shippers; the words "A/c. The State Trading Corporation of India Ltd." were typed immediately after the appellants name and address in the column shipper only to identify the tea with the contract between the Iranian buyer and STC. The learned counsel drew our attention to the fact that the advantage of duty drawback in respect of the aforesaid contracts had been received by the appellants. In his submission, the property in the tea had not passed from the appellants to STC. The purchase of the tea by the appellants at the auctions was, therefore, the penultimate sale in the course of export and, therefore, exempt from the levy of sales tax by the provisions of Section 5(3). 12. The learned counsel for the respondent Sales Tax authorities submitted that the export sale covered by Section 5(1) was the sale of tea by STC to the Iranian buyer, the penultimate sale in the course of export was the sale of tea by the appellant to STC, which was covered by the provisions of Section 5(3); therefore, the purchase by the appellants of the tea at the auctions was eligible to sales tax. 13. The learned counsel for the respondents drew our attention to the judgment of this Court in Mohd. Serajuddin v. State of Orissa [ 1975 (2) SCC 47 : 1975 SCC(Tax) 269 : 1975 (36) STC 136 ]. This was a case in which, admittedly, the Indian company had sold the goods to STC. The situation, therefore, was entirely different and the judgment has no application to the present case, where the contention on behalf of the appellants is that STC was only the agent of the appellants. We should also note that the judgment in Mohd. Serajuddin case [ 1975 (2) SCC 47 : 1975 SCC(Tax) 269 : 1975 (36) STC 136 ] led to the introduction of sub-section (3) in Section 5 (see Statement of Objects and Reasons thereof) so that the judgment does not reflect the law as it now stands. 14. The learned counsel for the respondents pointed out that in the contract between the appellants and STC, the appellants were referred to as the shipper not as the seller, whereas the Iranian buyer was referred to as the buyer. Emphasis was laid upon the fact that all documents were required to be prepared by the appellants marked "A/c STC" in all relevant places and these were to be forwarded to the STC for negotiation. It was pointed out that the contract contemplated disputes between the Iranian buyer and STC and not between the Iranian buyer and the appellants. The learned counsel for the respondents referred to the Bill of Lading and submitted that it had been endorsed in favour of STC and that, by reason thereof, the property in tea had passed to the STC. The endorsement was by the typing of the words "A/c. The State Trading Corporation of India Ltd." after the name and address of the appellants in the column shipper upon the Bill of Lading. 15. In our view, no term in the contract between the appellants and STC clearly contemplates a sale, that is, the transfer of property in tea from the appellants to STC. Such indication as there is to the contrary, particularly the requirement that the appellants should prepare all documents required for negotiation and the "sellers official invoice ... should be in 5 copies". The requirement that the words "A/c STC" be used was only to enable the Iranian buyer to identify the tea as being sent in fulfilment of the obligation under the contract between STC and itself. 16. The manner in which the contract between the appellants and STC was executed reinforces our view. The Tea Export Licence for the tea was that of the appellants. The invoice of the appellants showed the Iranian buyer against the column "Sold To", and no objection in this regard was raised by STC. The duty drawback benefit accrued entirely to the appellants. The Bill of Lading issued by the Irano-Hind Shipping Co. Ltd. showed the Iranian buyers Tehran bank as consignee of the tea shipped by the appellants. 17. Certainly, there is no endorsement on the Bill of Lading in favour of STC that would suggest transference to it of title in the tea. The typing of the words "A/c. The State Trading Corporation of India" below the name and address of the appellants against the column shipper does not constitute an endorsement. There was no endorsement upon the Bill of Lading signed by or on behalf of the Tehran bank, which is the consignee, or the Iranian buyer. 18. There is, therefore, nothing in the contract between the appellants and STC or in the manner of its execution that establishes that there was a transfer of the property in tea by the appellants to STC before it was transferred to the Iranian buyer. Hence, the purchase of the tea by the appellants at the auctions in fulfilment of the export obligation to the Iranian buyer was the penultimate sale in the course of export and covered by the terms of Section 5(3). It was, accordingly, exempt from the payment of sales tax
### Response:
1
### Explanation:
15. In our view, no term in the contract between the appellants and STC clearly contemplates a sale, that is, the transfer of property in tea from the appellants to STC. Such indication as there is to the contrary, particularly the requirement that the appellants should prepare all documents required for negotiation and the "sellers official invoice ... should be in 5 copies". The requirement that the words "A/c STC" be used was only to enable the Iranian buyer to identify the tea as being sent in fulfilment of the obligation under the contract between STC and itself16. The manner in which the contract between the appellants and STC was executed reinforces our view. The Tea Export Licence for the tea was that of the appellants. The invoice of the appellants showed the Iranian buyer against the column "Sold To", and no objection in this regard was raised by STC. The duty drawback benefit accrued entirely to the appellants. The Bill of Lading issued by the Irano-Hind Shipping Co. Ltd. showed the Iranian buyers Tehran bank as consignee of the tea shipped by the appellants17. Certainly, there is no endorsement on the Bill of Lading in favour of STC that would suggest transference to it of title in the tea. The typing of the words "A/c. The State Trading Corporation of India" below the name and address of the appellants against the column shipper does not constitute an endorsement. There was no endorsement upon the Bill of Lading signed by or on behalf of the Tehran bank, which is the consignee, or the Iranian buyer18. There is, therefore, nothing in the contract between the appellants and STC or in the manner of its execution that establishes that there was a transfer of the property in tea by the appellants to STC before it was transferred to the Iranian buyer. Hence, the purchase of the tea by the appellants at the auctions in fulfilment of the export obligation to the Iranian buyer was the penultimate sale in the course of export and covered by the terms of Section 5(3). It was, accordingly, exempt from the payment of sales tax
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SANJAY KUMAR JHA Vs. PRAKASH CHANDRA CHAUDHARY | zero, the order of the learned Single Bench does not disclose the process of reasoning for arriving at the conclusion that the re- spondent Prakash Chandra Chaudhary had become the candi- date with the highest marks. There was no reason to as- sume that the respondent Prakash Chandra Chaudhary would have to be awarded marks that would make him rank first in the panel, when the total marks were 4 and one Md. Mojibur Rahman, the third empaneled candidate had been awarded 4 out of 4, while the appellant Sanjay Kumar Jha had been awarded 2.14. The records reveal that the land of the appellant Sanjay Kumar Jha measuring 0.29 acres was within 50 meters from Giriyama chowk on Falka Gerabadri Road whereas the land of Prakash Chandra Chaudhary measuring 0.13 acres was located at a distance of 800 meters from Giriyama chowk. The land of the appellant Sanjay Kumar Jha was larger in area. Of course, these observations are not to be construed as any factual finding of this Court, that the land of respondent Prakash Chandra Chaudhary was within Giriyama. 16. It is well settled that proceedings under Article 226 of the Constitution of India, the High Court cannot sit as a Court of Appeal over the findings recorded by a competent administrative authority, nor reappreciate evidence for itself to correct the error of fact, that does not go to the root of jurisdiction. The High Court does not ordinarily interfere with the findings of fact based on evidence and substitute its own findings, which the High Court has done in this case. Even assuming that there had been any error in the computation of marks in respect of fixed and movable assets, the High Court could, at best, have remitted the case of respondent Prakash Chandra Chaudhary to the concerned authorities for reconsideration. 17. Being aggrieved by the judgment and order dated 8.3.2016 of the learned Single Bench the Indian Oil Corpora- tion filed an appeal therefrom, being Letters Patent Appeal No.855 of 2016, which has been dismissed by the order dated 24.4.2017 of the Division Bench under appeal in these ap- peals filed by the appellant, Sanjay Kumar Jha, and the Indian Oil Corporation respectively. 18. By the order under appeal, the Division Bench dismissed the appeal, rightly observing that the allotment was for Giriyama within the radius of one kilometer from Giriyama chowk at Falka Road. The Division Bench, however, fell in error in proceeding on the basis that the plot of the appellant Sanjay Kumar Jha was not situated in Giriyama Chowk and as such the learned writ court had not committed any error in recording its finding. It is a matter of record that there were two reports in respect of the plots, both of which confirm that the plot of the appellant was in Giriyama within 50 meters of Giriyama chowk whereas in case of respondent Prakash Chandra Chaudhary, the Circle Officer, Falka had by letter dated 15.4.2014 confirmed that the land offered by him fell outside the limits of Giriyama. In any case, the plot offered by respondent Prakash Chandra Chaudhary which measured 0.13 acres was smaller than that of the appellant Sanjay Kumar Jha was 0.29 acres. 19. In exercise of discretionary power of judicial review under Article 226 of the Constitution, the High Court might interfere with administrative matters only if the decision is violative of fundamental or basic principles of justice and fair play or suffers from any patent or flagrant error. It is true that the High Court might rectify, in exercise of its power of judicial review, an error of law or even an error of fact, for sufficient reasons, if the error breaches fundamental or basic principles of justice or fair play or if the error is patent and/or flagrant, but not otherwise. However, even in cases where the High Court finds an apparent factual error which goes to the root of the decision, the appropriate course of action would be to give the opportunity to the authority concerned to rectify the error. It is only in the rarest of cases, where the factual error is so obvious that it is rectifiable by the Court itself, that the Court might, to prevent delay and consequential denial and/or miscarriage of justice, rectify the error. 20. In the instant case, at the cost of repetition, it is reiterated that even assuming that the land of the petitioner was situated within Giriyama, there was no reason to presume that the marks awarded to the petitioner would in the aggregate be the highest when the land of the appellant Sanjay Kumar Jha was located nearer the Giriyama chowk and his area of land was bigger. 21. It is not for the High Court, exercising jurisdiction under Article 226 of the Constitution of India to embark upon a comparative assessment of the suitability of different candidates for appointment of a dealer of a retail outlet. The High Court, in our view, should not have decided the factual question of whether the land of respondent Prakash Chandra Chaudhary was in Giriyama in view of the reports of the concerned Additional Collector, District Magistrate and Circle Officer to the effect that the land of respondent Prakash Chandra Chaudhary was in Falka block and not within Giriyama. The High Court patently erred in brushing aside the reports of the Revenue Authorities and arriving at a different finding. 22. In any case, as observed above, the Division Bench has apparently dismissed the appeal filed by the appellant proceeding on the patently erroneous basis that the land of respondent Prakash Chandra Chaudhary had been found to be situated within the radius of one kilometer of Giriyama chowk whereas the land of the appellant Sanjay Kumar Jha was situated outside the Giriyama circle, which was not even the case of respondent Prakash Chandra Chaudhary in the writ petition. Even the learned Single Bench found that the land of the appellant Sanjay Kumar Jha was within Giriyama. | 1[ds]18. By the order under appeal, the Division Bench dismissed the appeal, rightly observing that the allotment was for Giriyama within the radius of one kilometer from Giriyama chowk at Falka Road. The Division Bench, however, fell in error in proceeding on the basis that the plot of the appellant Sanjay Kumar Jha was not situated in Giriyama Chowk and as such the learned writ court had not committed any error in recording its finding. It is a matter of record that there were two reports in respect of the plots, both of which confirm that the plot of the appellant was in Giriyama within 50 meters of Giriyama chowk whereas in case of respondent Prakash Chandra Chaudhary, the Circle Officer, Falka had by letter dated 15.4.2014 confirmed that the land offered by him fell outside the limits of Giriyama. In any case, the plot offered by respondent Prakash Chandra Chaudhary which measured 0.13 acres was smaller than that of the appellant Sanjay Kumar Jha was 0.29 acres.In exercise of discretionary power of judicial review under Article 226 of the Constitution, the High Court might interfere with administrative matters only if the decision is violative of fundamental or basic principles of justice and fair play or suffers from any patent or flagrant error. It is true that the High Court might rectify, in exercise of its power of judicial review, an error of law or even an error of fact, for sufficient reasons, if the error breaches fundamental or basic principles of justice or fair play or if the error is patent and/or flagrant, but not otherwise. However, even in cases where the High Court finds an apparent factual error which goes to the root of the decision, the appropriate course of action would be to give the opportunity to the authority concerned to rectify the error. It is only in the rarest of cases, where the factual error is so obvious that it is rectifiable by the Court itself, that the Court might, to prevent delay and consequential denial and/or miscarriage of justice, rectify the error.In the instant case, at the cost of repetition, it is reiterated that even assuming that the land of the petitioner was situated within Giriyama, there was no reason to presume that the marks awarded to the petitioner would in the aggregate be the highest when the land of the appellant Sanjay Kumar Jha was located nearer the Giriyama chowk and his area of land was bigger.It is not for the High Court, exercising jurisdiction under Article 226 of the Constitution of India to embark upon a comparative assessment of the suitability of different candidates for appointment of a dealer of a retail outlet. The High Court, in our view, should not have decided the factual question of whether the land of respondent Prakash Chandra Chaudhary was in Giriyama in view of the reports of the concerned Additional Collector, District Magistrate and Circle Officer to the effect that the land of respondent Prakash Chandra Chaudhary was in Falka block and not within Giriyama. The High Court patently erred in brushing aside the reports of the Revenue Authorities and arriving at a different finding.In any case, as observed above, the Division Bench has apparently dismissed the appeal filed by the appellant proceeding on the patently erroneous basis that the land of respondent Prakash Chandra Chaudhary had been found to be situated within the radius of one kilometer of Giriyama chowk whereas the land of the appellant Sanjay Kumar Jha was situated outside the Giriyama circle, which was not even the case of respondent Prakash Chandra Chaudhary in the writ petition. Even the learned Single Bench found that the land of the appellant Sanjay Kumar Jha was within Giriyama. | 1 | 2,151 | 668 | ### 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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zero, the order of the learned Single Bench does not disclose the process of reasoning for arriving at the conclusion that the re- spondent Prakash Chandra Chaudhary had become the candi- date with the highest marks. There was no reason to as- sume that the respondent Prakash Chandra Chaudhary would have to be awarded marks that would make him rank first in the panel, when the total marks were 4 and one Md. Mojibur Rahman, the third empaneled candidate had been awarded 4 out of 4, while the appellant Sanjay Kumar Jha had been awarded 2.14. The records reveal that the land of the appellant Sanjay Kumar Jha measuring 0.29 acres was within 50 meters from Giriyama chowk on Falka Gerabadri Road whereas the land of Prakash Chandra Chaudhary measuring 0.13 acres was located at a distance of 800 meters from Giriyama chowk. The land of the appellant Sanjay Kumar Jha was larger in area. Of course, these observations are not to be construed as any factual finding of this Court, that the land of respondent Prakash Chandra Chaudhary was within Giriyama. 16. It is well settled that proceedings under Article 226 of the Constitution of India, the High Court cannot sit as a Court of Appeal over the findings recorded by a competent administrative authority, nor reappreciate evidence for itself to correct the error of fact, that does not go to the root of jurisdiction. The High Court does not ordinarily interfere with the findings of fact based on evidence and substitute its own findings, which the High Court has done in this case. Even assuming that there had been any error in the computation of marks in respect of fixed and movable assets, the High Court could, at best, have remitted the case of respondent Prakash Chandra Chaudhary to the concerned authorities for reconsideration. 17. Being aggrieved by the judgment and order dated 8.3.2016 of the learned Single Bench the Indian Oil Corpora- tion filed an appeal therefrom, being Letters Patent Appeal No.855 of 2016, which has been dismissed by the order dated 24.4.2017 of the Division Bench under appeal in these ap- peals filed by the appellant, Sanjay Kumar Jha, and the Indian Oil Corporation respectively. 18. By the order under appeal, the Division Bench dismissed the appeal, rightly observing that the allotment was for Giriyama within the radius of one kilometer from Giriyama chowk at Falka Road. The Division Bench, however, fell in error in proceeding on the basis that the plot of the appellant Sanjay Kumar Jha was not situated in Giriyama Chowk and as such the learned writ court had not committed any error in recording its finding. It is a matter of record that there were two reports in respect of the plots, both of which confirm that the plot of the appellant was in Giriyama within 50 meters of Giriyama chowk whereas in case of respondent Prakash Chandra Chaudhary, the Circle Officer, Falka had by letter dated 15.4.2014 confirmed that the land offered by him fell outside the limits of Giriyama. In any case, the plot offered by respondent Prakash Chandra Chaudhary which measured 0.13 acres was smaller than that of the appellant Sanjay Kumar Jha was 0.29 acres. 19. In exercise of discretionary power of judicial review under Article 226 of the Constitution, the High Court might interfere with administrative matters only if the decision is violative of fundamental or basic principles of justice and fair play or suffers from any patent or flagrant error. It is true that the High Court might rectify, in exercise of its power of judicial review, an error of law or even an error of fact, for sufficient reasons, if the error breaches fundamental or basic principles of justice or fair play or if the error is patent and/or flagrant, but not otherwise. However, even in cases where the High Court finds an apparent factual error which goes to the root of the decision, the appropriate course of action would be to give the opportunity to the authority concerned to rectify the error. It is only in the rarest of cases, where the factual error is so obvious that it is rectifiable by the Court itself, that the Court might, to prevent delay and consequential denial and/or miscarriage of justice, rectify the error. 20. In the instant case, at the cost of repetition, it is reiterated that even assuming that the land of the petitioner was situated within Giriyama, there was no reason to presume that the marks awarded to the petitioner would in the aggregate be the highest when the land of the appellant Sanjay Kumar Jha was located nearer the Giriyama chowk and his area of land was bigger. 21. It is not for the High Court, exercising jurisdiction under Article 226 of the Constitution of India to embark upon a comparative assessment of the suitability of different candidates for appointment of a dealer of a retail outlet. The High Court, in our view, should not have decided the factual question of whether the land of respondent Prakash Chandra Chaudhary was in Giriyama in view of the reports of the concerned Additional Collector, District Magistrate and Circle Officer to the effect that the land of respondent Prakash Chandra Chaudhary was in Falka block and not within Giriyama. The High Court patently erred in brushing aside the reports of the Revenue Authorities and arriving at a different finding. 22. In any case, as observed above, the Division Bench has apparently dismissed the appeal filed by the appellant proceeding on the patently erroneous basis that the land of respondent Prakash Chandra Chaudhary had been found to be situated within the radius of one kilometer of Giriyama chowk whereas the land of the appellant Sanjay Kumar Jha was situated outside the Giriyama circle, which was not even the case of respondent Prakash Chandra Chaudhary in the writ petition. Even the learned Single Bench found that the land of the appellant Sanjay Kumar Jha was within Giriyama.
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1
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18. By the order under appeal, the Division Bench dismissed the appeal, rightly observing that the allotment was for Giriyama within the radius of one kilometer from Giriyama chowk at Falka Road. The Division Bench, however, fell in error in proceeding on the basis that the plot of the appellant Sanjay Kumar Jha was not situated in Giriyama Chowk and as such the learned writ court had not committed any error in recording its finding. It is a matter of record that there were two reports in respect of the plots, both of which confirm that the plot of the appellant was in Giriyama within 50 meters of Giriyama chowk whereas in case of respondent Prakash Chandra Chaudhary, the Circle Officer, Falka had by letter dated 15.4.2014 confirmed that the land offered by him fell outside the limits of Giriyama. In any case, the plot offered by respondent Prakash Chandra Chaudhary which measured 0.13 acres was smaller than that of the appellant Sanjay Kumar Jha was 0.29 acres.In exercise of discretionary power of judicial review under Article 226 of the Constitution, the High Court might interfere with administrative matters only if the decision is violative of fundamental or basic principles of justice and fair play or suffers from any patent or flagrant error. It is true that the High Court might rectify, in exercise of its power of judicial review, an error of law or even an error of fact, for sufficient reasons, if the error breaches fundamental or basic principles of justice or fair play or if the error is patent and/or flagrant, but not otherwise. However, even in cases where the High Court finds an apparent factual error which goes to the root of the decision, the appropriate course of action would be to give the opportunity to the authority concerned to rectify the error. It is only in the rarest of cases, where the factual error is so obvious that it is rectifiable by the Court itself, that the Court might, to prevent delay and consequential denial and/or miscarriage of justice, rectify the error.In the instant case, at the cost of repetition, it is reiterated that even assuming that the land of the petitioner was situated within Giriyama, there was no reason to presume that the marks awarded to the petitioner would in the aggregate be the highest when the land of the appellant Sanjay Kumar Jha was located nearer the Giriyama chowk and his area of land was bigger.It is not for the High Court, exercising jurisdiction under Article 226 of the Constitution of India to embark upon a comparative assessment of the suitability of different candidates for appointment of a dealer of a retail outlet. The High Court, in our view, should not have decided the factual question of whether the land of respondent Prakash Chandra Chaudhary was in Giriyama in view of the reports of the concerned Additional Collector, District Magistrate and Circle Officer to the effect that the land of respondent Prakash Chandra Chaudhary was in Falka block and not within Giriyama. The High Court patently erred in brushing aside the reports of the Revenue Authorities and arriving at a different finding.In any case, as observed above, the Division Bench has apparently dismissed the appeal filed by the appellant proceeding on the patently erroneous basis that the land of respondent Prakash Chandra Chaudhary had been found to be situated within the radius of one kilometer of Giriyama chowk whereas the land of the appellant Sanjay Kumar Jha was situated outside the Giriyama circle, which was not even the case of respondent Prakash Chandra Chaudhary in the writ petition. Even the learned Single Bench found that the land of the appellant Sanjay Kumar Jha was within Giriyama.
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Director Of Panchayat Raj & Anr Vs. Babu Singh Gaur | for no other purpose. That order did not convert the appointments of the temporary Government servants in those departments either into permanent appointments or into temporary appointments in substantive capacity in permanent post.13. A temporary Government servant does not become a permanent Government servant unless he gets that capacity either under some rule or he is declared or appointed by the Government as a permanent Government servant. Our attention has not been invited to any under which respondent in these appeals can be considered as having been appointed either permanently or in a substantive capacity to permanent posts. All along they continued to be temporary Government servants whether the posts held by them were temporary posts or permanent posts.14. This Court in Purshotam Lal Dhingra v. The Union of India, [1958 - I L.L.J. 544]; (1958) S.C.R. 828, considered in detail the nature of posts held by Government servant. Dealing with the question of substantive appointment of a person to a temporary post, this Court observed at pages 842 and 843 of the report :"The substantive appointment to a temporary post, under the rules, used to give the servant so appointed certain benefits regarding pay and leave, but was otherwise on the same footing as appointment to a temporary post on probation or on an officiating basis, that is to say, terminable by notice except where under the rules promulgated in 1949 to which reference will hereafter be made, his service had ripened into what is called a quasi-permanent service."15. It may be noted that in that case this Court was considering the effect of Fundamental Rules. In these appeals also we are concerned with those Rules. After dealing with the nature of the various appointments, this Court observed :"The position may, therefore, be summarised as follows : In the absence of any special contract the substantive appointment to a permanent post gives the servant so appointed a right to hold the post until, under the rules, he attains the age of superannuation or is compulsorily retired after having put in the prescribed number of years service or the post is abolished and his service cannot be terminated except by way of punishment for misconduct, negligence, inefficiency or any other disqualification found against him on proper enquiry after due notice to him. An appointment to a temporary post for a certain specified period also gives the servant so appointed a right to hold the post for the entire period of his tenure and his tenure cannot be put an end to during that period unless he is, by way of punishment, dismissed or removed from the service. Except in these two cases, the appointment to a post, permanent or temporary, on probation or on officiating basis or a substantive appointment to a temporary post gives to the servant so appointed no right to the post and his service may be terminated unless his service had ripened into what is, in the service rules, called a quasi-permanent service."16. In State of Nagaland v. G. Vasantha, A.I.R. 1970 S.C. 537, this Court was called upon to decide the validity of termination of service of a Government servant by giving him notice of termination as prescribed in the relevant rules. Therein, the concerned Government servant had been appointed purely on temporary basis. The post to which he was appointed was also a temporary post. Sometime after his appointment that post was converted into a permanent post. But his services were terminated. The question was whether because of the conversion of the post into a permanent post, he ceased to be a temporary Government servant. Reversing the decision of the High Court of Assam and Nagaland, this Court held that the fact that the post which he was holding was converted into a permanent post did not confer on him any additional right. His service was terminable by giving him the prescribed notice under the rules.17. A question similar to the one before us came up for consideration before this Court in State of U.P. v. Abdul Khalik, (C.A. Nos. 782 and 783 of 1966, dated 30-4-1969). The facts of that case were substantially similar to the facts in these appeals. Therein this Court reversing the decision of the Allahabad High Court held that the service of the respondent therein was validly terminated by giving him one months notice. Speaking for the Court Sikri, J. (our present Chief Justice) observed :"The learned counsel for the State contends that the plaintiff was a temporary servant and his services were liable to be terminated on a months notice and the fact that he was holding appointment as temporary substantive does not make the plaintiff a permanent Government servant. There is force in this contention. The learned counsel for the plaintiff was not able to point out any material to show that a person who is appointed temporary substantive can be equated with a permanent Government servant. It is clear from the order dated May 22, 1956, that only certain posts were made permanent while by the order dated December 12, 1957, certain other persons were made permanent Government servants. The plaintiff cannot claim to be a permanent Government servant till he is declared or appointed as such."18. In that case this Court had to consider the scope of the rule framed by the Governor under Art. 309 of the Constitution. In our opinion, the ratio of that decision completely covers the point under consideration. That decision was tried to be distinguished on the ground that in that case, only some out of the several temporary posts had been converted into permanent posts, whereas in the cases before us all the temporary posts had been converted into permanent posts. We do not think this difference has any bearing on the ratio of that decision. The ratio of that decision is that a Government servant temporarily appointed does not get a right to the post merely because the post held by him is converted into a permanent post. | 1[ds]10. It is clear from the rules as well as the order of the Governor that they merely dealt with leave and increment. That order has nothing to do with the nature of the appointment. The fact that for certain specified purposes those temporary appointments were to be considered to be in a substantive capacity, does not mean that the appointees were holding the posts in question in a substantive capacity for all purposes. For purposes other than mentioned in the order, their appointments continue to be temporary.11. The learned Judge of the Letters Patent Bench thought that as Babu Singh Gaur and Jugal Kishore Bhatt were holding their posts in a substantive capacity, though temporarily, after the posts held by them were made permanent, they must be held to have been holding those permanent post in a substantive capacity. In our opinion this is an erroneous reasoning. The order which converted those temporary posts into permanent temporary posts into permanent posts specifically stated that "order regarding the confirmation of individual officers in these posts will issue separately". At the time of the conversion of temporary post into permanent post, the Government did not consider the question as to who all should be confirmed. Obviously the Government wanted to consider that question separately.12. The substantive capacity conferred on the officers holding temporary posts in the Sales Tax department as well as in the Panchayat Raj department was for a specific purpose, i.e., counting leave for increment purpose; and for no other purpose. That order did not convert the appointments of the temporary Government servants in those departments either into permanent appointments or into temporary appointments in substantive capacity in permanent post.13. A temporary Government servant does not become a permanent Government servant unless he gets that capacity either under some rule or he is declared or appointed by the Government as a permanent Government servant. Our attention has not been invited to any under which respondent in these appeals can be considered as having been appointed either permanently or in a substantive capacity to permanent posts. All along they continued to be temporary Government servants whether the posts held by them were temporary posts or permanent posts.In that case this Court had to consider the scope of the rule framed by the Governor under Art. 309 of the Constitution. In our opinion, the ratio of that decision completely covers the point under consideration. That decision was tried to be distinguished on the ground that in that case, only some out of the several temporary posts had been converted into permanent posts, whereas in the cases before us all the temporary posts had been converted into permanent posts. We do not think this difference has any bearing on the ratio of that decision. The ratio of that decision is that a Government servant temporarily appointed does not get a right to the post merely because the post held by him is converted into a permanent post. | 1 | 3,187 | 533 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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for no other purpose. That order did not convert the appointments of the temporary Government servants in those departments either into permanent appointments or into temporary appointments in substantive capacity in permanent post.13. A temporary Government servant does not become a permanent Government servant unless he gets that capacity either under some rule or he is declared or appointed by the Government as a permanent Government servant. Our attention has not been invited to any under which respondent in these appeals can be considered as having been appointed either permanently or in a substantive capacity to permanent posts. All along they continued to be temporary Government servants whether the posts held by them were temporary posts or permanent posts.14. This Court in Purshotam Lal Dhingra v. The Union of India, [1958 - I L.L.J. 544]; (1958) S.C.R. 828, considered in detail the nature of posts held by Government servant. Dealing with the question of substantive appointment of a person to a temporary post, this Court observed at pages 842 and 843 of the report :"The substantive appointment to a temporary post, under the rules, used to give the servant so appointed certain benefits regarding pay and leave, but was otherwise on the same footing as appointment to a temporary post on probation or on an officiating basis, that is to say, terminable by notice except where under the rules promulgated in 1949 to which reference will hereafter be made, his service had ripened into what is called a quasi-permanent service."15. It may be noted that in that case this Court was considering the effect of Fundamental Rules. In these appeals also we are concerned with those Rules. After dealing with the nature of the various appointments, this Court observed :"The position may, therefore, be summarised as follows : In the absence of any special contract the substantive appointment to a permanent post gives the servant so appointed a right to hold the post until, under the rules, he attains the age of superannuation or is compulsorily retired after having put in the prescribed number of years service or the post is abolished and his service cannot be terminated except by way of punishment for misconduct, negligence, inefficiency or any other disqualification found against him on proper enquiry after due notice to him. An appointment to a temporary post for a certain specified period also gives the servant so appointed a right to hold the post for the entire period of his tenure and his tenure cannot be put an end to during that period unless he is, by way of punishment, dismissed or removed from the service. Except in these two cases, the appointment to a post, permanent or temporary, on probation or on officiating basis or a substantive appointment to a temporary post gives to the servant so appointed no right to the post and his service may be terminated unless his service had ripened into what is, in the service rules, called a quasi-permanent service."16. In State of Nagaland v. G. Vasantha, A.I.R. 1970 S.C. 537, this Court was called upon to decide the validity of termination of service of a Government servant by giving him notice of termination as prescribed in the relevant rules. Therein, the concerned Government servant had been appointed purely on temporary basis. The post to which he was appointed was also a temporary post. Sometime after his appointment that post was converted into a permanent post. But his services were terminated. The question was whether because of the conversion of the post into a permanent post, he ceased to be a temporary Government servant. Reversing the decision of the High Court of Assam and Nagaland, this Court held that the fact that the post which he was holding was converted into a permanent post did not confer on him any additional right. His service was terminable by giving him the prescribed notice under the rules.17. A question similar to the one before us came up for consideration before this Court in State of U.P. v. Abdul Khalik, (C.A. Nos. 782 and 783 of 1966, dated 30-4-1969). The facts of that case were substantially similar to the facts in these appeals. Therein this Court reversing the decision of the Allahabad High Court held that the service of the respondent therein was validly terminated by giving him one months notice. Speaking for the Court Sikri, J. (our present Chief Justice) observed :"The learned counsel for the State contends that the plaintiff was a temporary servant and his services were liable to be terminated on a months notice and the fact that he was holding appointment as temporary substantive does not make the plaintiff a permanent Government servant. There is force in this contention. The learned counsel for the plaintiff was not able to point out any material to show that a person who is appointed temporary substantive can be equated with a permanent Government servant. It is clear from the order dated May 22, 1956, that only certain posts were made permanent while by the order dated December 12, 1957, certain other persons were made permanent Government servants. The plaintiff cannot claim to be a permanent Government servant till he is declared or appointed as such."18. In that case this Court had to consider the scope of the rule framed by the Governor under Art. 309 of the Constitution. In our opinion, the ratio of that decision completely covers the point under consideration. That decision was tried to be distinguished on the ground that in that case, only some out of the several temporary posts had been converted into permanent posts, whereas in the cases before us all the temporary posts had been converted into permanent posts. We do not think this difference has any bearing on the ratio of that decision. The ratio of that decision is that a Government servant temporarily appointed does not get a right to the post merely because the post held by him is converted into a permanent post.
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1
### Explanation:
10. It is clear from the rules as well as the order of the Governor that they merely dealt with leave and increment. That order has nothing to do with the nature of the appointment. The fact that for certain specified purposes those temporary appointments were to be considered to be in a substantive capacity, does not mean that the appointees were holding the posts in question in a substantive capacity for all purposes. For purposes other than mentioned in the order, their appointments continue to be temporary.11. The learned Judge of the Letters Patent Bench thought that as Babu Singh Gaur and Jugal Kishore Bhatt were holding their posts in a substantive capacity, though temporarily, after the posts held by them were made permanent, they must be held to have been holding those permanent post in a substantive capacity. In our opinion this is an erroneous reasoning. The order which converted those temporary posts into permanent temporary posts into permanent posts specifically stated that "order regarding the confirmation of individual officers in these posts will issue separately". At the time of the conversion of temporary post into permanent post, the Government did not consider the question as to who all should be confirmed. Obviously the Government wanted to consider that question separately.12. The substantive capacity conferred on the officers holding temporary posts in the Sales Tax department as well as in the Panchayat Raj department was for a specific purpose, i.e., counting leave for increment purpose; and for no other purpose. That order did not convert the appointments of the temporary Government servants in those departments either into permanent appointments or into temporary appointments in substantive capacity in permanent post.13. A temporary Government servant does not become a permanent Government servant unless he gets that capacity either under some rule or he is declared or appointed by the Government as a permanent Government servant. Our attention has not been invited to any under which respondent in these appeals can be considered as having been appointed either permanently or in a substantive capacity to permanent posts. All along they continued to be temporary Government servants whether the posts held by them were temporary posts or permanent posts.In that case this Court had to consider the scope of the rule framed by the Governor under Art. 309 of the Constitution. In our opinion, the ratio of that decision completely covers the point under consideration. That decision was tried to be distinguished on the ground that in that case, only some out of the several temporary posts had been converted into permanent posts, whereas in the cases before us all the temporary posts had been converted into permanent posts. We do not think this difference has any bearing on the ratio of that decision. The ratio of that decision is that a Government servant temporarily appointed does not get a right to the post merely because the post held by him is converted into a permanent post.
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Bihar State Electricity Board Vs. M/s. Usha Martin Industries | ...... Ordinarily, it is not shown as a separate item in the bill but it is included in the price charged by him. The "Sale Price" in such a case could be the entire price inclusive of excise duty because that would be the consideration payable by the purchaser for the sale of the goods. ...... But even so it would be part of the sale price because it forms a component of the consideration payable by the purchaser to the dealer.... and on this reasoning, it would make no difference whether the amount of excise duty is included in the price charged by the dealer or is shown as a separate item in the bills. In either case, it would be part of the sale price." 22. Mr. Dave contended that even on general principle of law the rates fixed under the tariff included Central Excise Duty, even if it was not mentioned separately in express words. 23. We are unable to uphold any of these arguments. The proposition laid down in the case of Love v. Norman Wright (Builders) Ltd., 1944(1) All ER 618, goes directly against the argument advanced by Mr. Dave. M/s. Usha Martin Industries is the purchaser of electricity. The price it pays will include costs of production, profit plus taxes. But the purchaser pays nothing but the price. The consideration for the sale of electricity is the price charged by the Board. The law laid down by Lord Goddard LJ in Love v. Norman Wright (Builders) Ltd., in a case under purchase tax was applied by this Court in the case of Hindustan Sugar Mills v. State of Rajasthan, (AIR 1978 SC 1496 ) (Supra). After referring to the judgment of Goddard LJ, it was reiterated that the sale price would be the entire price inclusive of excise duty because that would be the consideration payable by the purchaser for the sale of goods. 24. In the instant case, after imposition of Central Excise Duty on production of electricity at the rate of 0.02 paise per unit, the Board did not revise the uniform tariff, but decided to levy a surcharge of 0.03 paise per unit even though the duty payable was only 2 paise per unit. Reasons have been given in justification for surcharge of 3 paise per unit even though the duty levied was only 2 paise per unit which were found valid by the Division Bench of the Patna High Court. On and from 2-6-1979, the surcharge was merged in uniform tariff by a notification issued by the Board. There is no dispute that the uniform tariff was fixed in conformity with the principles contained in Section 49 of the Act. Along with other costs incurred by it, the Board also took into account the excise duty payable by the Board. It is not the case of the respondent-Company that the Board is making excessive profit or any profit at all. The excise duty is only one small item in the total expenditure incurred by the Board for generation of electricity. There is no law which requires the Board to reduce the tarrif, if any one of the items of expenditure incurred by the Board has been reduced. 25. This Court pointed out in the case of Parag Ice and Oil Mills v. Union of India, 1978(3) SCR 293, that in the ultimate analysis the mechanics of price fixation is necessarily to be left to the judgment of the executive. The principle was reiterated in the case of Rohtas Industries Ltd. v. Chairman, Bihar State Electricity Board, 1984 (Supp) SCC 161, where fuel surcharge levied by the Board was challenged as arbitrary and unreasonable. (At P. 663 of AIR) "The learned Attorney-General appearing on behalf of the Board has placed before us tabulated statements showing the working results (financial) of the Board in the years subsequent to 1977-78. It is found therefrom that the net result of the Boards working in each of the years 1978-79 to 1981-82 was a substantial deficit or loss. The deficit in 1978-79 was Rs. 15.31 crores, in 1979-80 Rs. 10.27 crores, in 1980-81 Rs. 32.69 crores and in 1981-82 Rs. 18.60 crores. The statement also shows that the revenue earned per unit of electric energy sold was much lower than the actual cost of production incurred by the Board per unit. The cost of production per unit in the four years aforementioned was 51.00 p., 65.10 p., 73.86 p., and 87.16 p. respectively, whereas the revenue per unit was only 38.48 p., 47.17 p., 53.07 p., and 66.39 p. respectively. It is thus found that notwithstanding the mandatory provision contained in Section 59 of the Act, the Board has been selling energy at rates which are lower then the actual cost incurred by it per unit of production. Such being the factual situation, there is absolutely no basis for the contention urged on behalf of the appellants that the tariff fixation effected by the Board suffers from the vice of arbitrariness and is liable to be interfered with by the Court on that ground." 26. The period involved in that dispute was the years 1978-79 and 1981-82 (This period is also relevant for the purpose of this case). In that case scope of Section 59 of the Act was examined and it was observed that no attempt has been made on behalf of the respondent-Company to show that the Board was making undue profit. The Central Excise Duty has been merged in the uniform tariff. The petitioner, in effect, is seeking a reduction of the uniform tariff fixed by the Board. It is not the case of the petitioner that the tariff has been fixed regardless of considerations which have to be taken into account under Section 49. The mechanics of price fixation has to be left to the judgment of the executive.27. We are of the view, the High Court was clearly in error in directing modification of the tariff fixed by the Board. | 1[ds]2. We are of the view that the High Court was clearly in error in coming to this decision. Electricity has to be supplied by the Board to persons other than licensees at a price fixed by the Board. In fixing the price, the Board has to take into consideration various factors laid down in Section 49 ofthe Electricity (Supply) Act, 1948. The Board is also under a statutory mandate to charge price from its customers in such a way that the total revenue received by it in a year is more than its expenditure. Section 59 enjoins the Board to generate profit of at least 3 per cent of the value of the fixed assets of the Board. The State Government may direct the Board to generate even larger profits.We are of the view that the High Court should not have interfered with the pricing of the electricity sold by the Board on the ground that the liability to pay central excise duty had come to an end on and from 1st October,first and foremost is that this contention was not taken before the lower authorities including the Tribunal. The applicability of Section 64-A will depend upon the agreement between the parties. No evidence was led before the authorities below to show that the parties intended that the relief of excise duty if abolished or reduced would be passed on to the consumers. It was specifically stated in Clause 16.4, one of the clauses of Tariff Notification, that if the excise duty was enhanced, the tariff would be raised. No provision was made for reduction of tariff under any circumstance. The specific provision for raising tariff in case of enhancement of excise duty and absence of any such provision for reduction of tariff in case of lowering or abolition of excise duty go to show that there was no intention on the part of the Board to reduce the tariff in case of lowering or abolition of the excise duty. The provision of Section 64-A can only apply if intention to the contrary did not appear from the terms of the contract.17. Moreover, the tariff is fixed by exercise of statutory power. It is not fixed as a result of any bargaining by and between the Board and the consumers. It is a uniform tariff which every consumer will have to pay for the electricity consumed by him. In fact, the consumer has no option but to pay the tariff fixed by the Board in exercise of power conferred by Section 49.This argument overlooks the fact that the price in the instant case was fixed in exercise of statutory power. It included Central Excise Duty on electricity with effect from 1-3-1978. On 6-4-1979, the Central Excise Duty payable on generation of electricity was merged in the tariff. The result was that the excise duty was included in the price for supply of electricity charged by the Board and lost its separate identity.In the instant case, after imposition of Central Excise Duty on production of electricity at the rate of 0.02 paise per unit, the Board did not revise the uniform tariff, but decided to levy a surcharge of 0.03 paise per unit even though the duty payable was only 2 paise per unit. Reasons have been given in justification for surcharge of 3 paise per unit even though the duty levied was only 2 paise per unit which were found valid by the Division Bench of the Patna High Court. On and from 2-6-1979, the surcharge was merged in uniform tariff by a notification issued by the Board. There is no dispute that the uniform tariff was fixed in conformity with the principles contained in Section 49 of the Act. Along with other costs incurred by it, the Board also took into account the excise duty payable by the Board. It is not the case of the respondent-Company that the Board is making excessive profit or any profit at all. The excise duty is only one small item in the total expenditure incurred by the Board for generation of electricity. There is no law which requires the Board to reduce the tarrif, if any one of the items of expenditure incurred by the Board has beenis not the case of the petitioner that the tariff has been fixed regardless of considerations which have to be taken into account under Section 49. The mechanics of price fixation has to be left to the judgment of the executive.27. We are of the view, the High Court was clearly in error in directing modification of the tariff fixed by the Board. | 1 | 3,733 | 821 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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...... Ordinarily, it is not shown as a separate item in the bill but it is included in the price charged by him. The "Sale Price" in such a case could be the entire price inclusive of excise duty because that would be the consideration payable by the purchaser for the sale of the goods. ...... But even so it would be part of the sale price because it forms a component of the consideration payable by the purchaser to the dealer.... and on this reasoning, it would make no difference whether the amount of excise duty is included in the price charged by the dealer or is shown as a separate item in the bills. In either case, it would be part of the sale price." 22. Mr. Dave contended that even on general principle of law the rates fixed under the tariff included Central Excise Duty, even if it was not mentioned separately in express words. 23. We are unable to uphold any of these arguments. The proposition laid down in the case of Love v. Norman Wright (Builders) Ltd., 1944(1) All ER 618, goes directly against the argument advanced by Mr. Dave. M/s. Usha Martin Industries is the purchaser of electricity. The price it pays will include costs of production, profit plus taxes. But the purchaser pays nothing but the price. The consideration for the sale of electricity is the price charged by the Board. The law laid down by Lord Goddard LJ in Love v. Norman Wright (Builders) Ltd., in a case under purchase tax was applied by this Court in the case of Hindustan Sugar Mills v. State of Rajasthan, (AIR 1978 SC 1496 ) (Supra). After referring to the judgment of Goddard LJ, it was reiterated that the sale price would be the entire price inclusive of excise duty because that would be the consideration payable by the purchaser for the sale of goods. 24. In the instant case, after imposition of Central Excise Duty on production of electricity at the rate of 0.02 paise per unit, the Board did not revise the uniform tariff, but decided to levy a surcharge of 0.03 paise per unit even though the duty payable was only 2 paise per unit. Reasons have been given in justification for surcharge of 3 paise per unit even though the duty levied was only 2 paise per unit which were found valid by the Division Bench of the Patna High Court. On and from 2-6-1979, the surcharge was merged in uniform tariff by a notification issued by the Board. There is no dispute that the uniform tariff was fixed in conformity with the principles contained in Section 49 of the Act. Along with other costs incurred by it, the Board also took into account the excise duty payable by the Board. It is not the case of the respondent-Company that the Board is making excessive profit or any profit at all. The excise duty is only one small item in the total expenditure incurred by the Board for generation of electricity. There is no law which requires the Board to reduce the tarrif, if any one of the items of expenditure incurred by the Board has been reduced. 25. This Court pointed out in the case of Parag Ice and Oil Mills v. Union of India, 1978(3) SCR 293, that in the ultimate analysis the mechanics of price fixation is necessarily to be left to the judgment of the executive. The principle was reiterated in the case of Rohtas Industries Ltd. v. Chairman, Bihar State Electricity Board, 1984 (Supp) SCC 161, where fuel surcharge levied by the Board was challenged as arbitrary and unreasonable. (At P. 663 of AIR) "The learned Attorney-General appearing on behalf of the Board has placed before us tabulated statements showing the working results (financial) of the Board in the years subsequent to 1977-78. It is found therefrom that the net result of the Boards working in each of the years 1978-79 to 1981-82 was a substantial deficit or loss. The deficit in 1978-79 was Rs. 15.31 crores, in 1979-80 Rs. 10.27 crores, in 1980-81 Rs. 32.69 crores and in 1981-82 Rs. 18.60 crores. The statement also shows that the revenue earned per unit of electric energy sold was much lower than the actual cost of production incurred by the Board per unit. The cost of production per unit in the four years aforementioned was 51.00 p., 65.10 p., 73.86 p., and 87.16 p. respectively, whereas the revenue per unit was only 38.48 p., 47.17 p., 53.07 p., and 66.39 p. respectively. It is thus found that notwithstanding the mandatory provision contained in Section 59 of the Act, the Board has been selling energy at rates which are lower then the actual cost incurred by it per unit of production. Such being the factual situation, there is absolutely no basis for the contention urged on behalf of the appellants that the tariff fixation effected by the Board suffers from the vice of arbitrariness and is liable to be interfered with by the Court on that ground." 26. The period involved in that dispute was the years 1978-79 and 1981-82 (This period is also relevant for the purpose of this case). In that case scope of Section 59 of the Act was examined and it was observed that no attempt has been made on behalf of the respondent-Company to show that the Board was making undue profit. The Central Excise Duty has been merged in the uniform tariff. The petitioner, in effect, is seeking a reduction of the uniform tariff fixed by the Board. It is not the case of the petitioner that the tariff has been fixed regardless of considerations which have to be taken into account under Section 49. The mechanics of price fixation has to be left to the judgment of the executive.27. We are of the view, the High Court was clearly in error in directing modification of the tariff fixed by the Board.
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2. We are of the view that the High Court was clearly in error in coming to this decision. Electricity has to be supplied by the Board to persons other than licensees at a price fixed by the Board. In fixing the price, the Board has to take into consideration various factors laid down in Section 49 ofthe Electricity (Supply) Act, 1948. The Board is also under a statutory mandate to charge price from its customers in such a way that the total revenue received by it in a year is more than its expenditure. Section 59 enjoins the Board to generate profit of at least 3 per cent of the value of the fixed assets of the Board. The State Government may direct the Board to generate even larger profits.We are of the view that the High Court should not have interfered with the pricing of the electricity sold by the Board on the ground that the liability to pay central excise duty had come to an end on and from 1st October,first and foremost is that this contention was not taken before the lower authorities including the Tribunal. The applicability of Section 64-A will depend upon the agreement between the parties. No evidence was led before the authorities below to show that the parties intended that the relief of excise duty if abolished or reduced would be passed on to the consumers. It was specifically stated in Clause 16.4, one of the clauses of Tariff Notification, that if the excise duty was enhanced, the tariff would be raised. No provision was made for reduction of tariff under any circumstance. The specific provision for raising tariff in case of enhancement of excise duty and absence of any such provision for reduction of tariff in case of lowering or abolition of excise duty go to show that there was no intention on the part of the Board to reduce the tariff in case of lowering or abolition of the excise duty. The provision of Section 64-A can only apply if intention to the contrary did not appear from the terms of the contract.17. Moreover, the tariff is fixed by exercise of statutory power. It is not fixed as a result of any bargaining by and between the Board and the consumers. It is a uniform tariff which every consumer will have to pay for the electricity consumed by him. In fact, the consumer has no option but to pay the tariff fixed by the Board in exercise of power conferred by Section 49.This argument overlooks the fact that the price in the instant case was fixed in exercise of statutory power. It included Central Excise Duty on electricity with effect from 1-3-1978. On 6-4-1979, the Central Excise Duty payable on generation of electricity was merged in the tariff. The result was that the excise duty was included in the price for supply of electricity charged by the Board and lost its separate identity.In the instant case, after imposition of Central Excise Duty on production of electricity at the rate of 0.02 paise per unit, the Board did not revise the uniform tariff, but decided to levy a surcharge of 0.03 paise per unit even though the duty payable was only 2 paise per unit. Reasons have been given in justification for surcharge of 3 paise per unit even though the duty levied was only 2 paise per unit which were found valid by the Division Bench of the Patna High Court. On and from 2-6-1979, the surcharge was merged in uniform tariff by a notification issued by the Board. There is no dispute that the uniform tariff was fixed in conformity with the principles contained in Section 49 of the Act. Along with other costs incurred by it, the Board also took into account the excise duty payable by the Board. It is not the case of the respondent-Company that the Board is making excessive profit or any profit at all. The excise duty is only one small item in the total expenditure incurred by the Board for generation of electricity. There is no law which requires the Board to reduce the tarrif, if any one of the items of expenditure incurred by the Board has beenis not the case of the petitioner that the tariff has been fixed regardless of considerations which have to be taken into account under Section 49. The mechanics of price fixation has to be left to the judgment of the executive.27. We are of the view, the High Court was clearly in error in directing modification of the tariff fixed by the Board.
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S. R. Y. Sivaram Prasad Bahadur Vs. The Commissioner Of Income Tax Hyderabad | the management of Estates was taken over. Section 14 of that Regulation provided that the amount payable to Jagirdars and Hissedars under that Regulation "shall be deemed to be interim maintenance allowances payable until such time as the terms for the commutation of Jagirs are determined". Section 3 of The Hyderabad Jagirs (Commutation) Regulation, 1359F laid down that commutation sum for a Jagir would be a certain multiple of its basic annual revenue. Section 6 of that Regulation provided that the commutation sum for each Jagir would be distributable between the Jagirdars and Hissedars in certain proportions. Sub-section (2) of S. 7 of that Regulation stated that payment to a Jagirdar of the commutation sum of the Jagir shall constitute the final commutation as from the 1st April 1950 of his rights in the Jagir and if any payment by way of an interim maintenance allowance under the said Regulation, that is, the former Regulation, is made in respect of a period subsequent to the said date, the amount of such payment shall be recovered from the recipient thereof by deduction from his share in the commutation sum for the Jagir. On an interpretation of S. 14 of the Regulation of 1358 F, this Court held that the interim maintenance allowances paid under that section were revenue receipts on which income-tax can be imposed. Some of the observations found in that judgment undoubtedly support the case of the Department. But we must see under what circumstances those observations were made.20. In order to understand the ratio of that decision, we must bear in mind the provisions of the two Regulations referred to hereinbefore. The first Regulation provided for the taking over of the management of the Estates and the second Regulation prescribed the mode of determining the commutation sum in respect of each jagir and for its payment. The character of the receipt which this Court was called upon to consider was the maintenance allowance paid under Section 14 of the first of the two Regulations. Under the Regulation, the Administrator of Jagirs took over the management of the Estates pending making provision for determination of the commutation amount. Provision in that regard was made under the second Regulation. Till the payment of the commutation sum, the Administrator merely managed the Estates on behalf of the former owners of those Estates. This is clear from Ss. 5, 8, 11, 12, 13 and 14 of the first Regulation. Under Section 5 thereof the quondam Jagirdars were required to hand over the possession of their Estates to the Jagir Administrator. Section 8 required the former Jagirdars to pay to the Government the administration expenses of their Estates. Section 11 provided for distribution of net income of an Estate between the Jagirdar and his Hissedars who were entitled to a share in the income of the Estate. Section 12 (1) says"From the amount payable to any person under section 11, there shall be deducted the amount of any maintenance allowance which under sub-section (2) is debitable to the share of that person."Section 13 required the Jagir Administrator to maintain separate account in respect of each Jagir and afford the concerned Jagirdar and Hissedar reasonable facilities for the inspection of the same. Section 14 reads:"The amounts payable to Jagirdars and Hissedars under the Regulation shall be deemed to be interim maintenance allowances payable until such time as the terms for the commutation of jagirs are determined."21. It is the character of the payments made under S. 14 that came up for consideration before this Court in Rameshwar Raos case, 1964-2 SCR 847 = AIR 1963 SC 290 (supra). Quite clearly the maintenance allowances paid were revenue receipts. Hence that decision has no bearing on the question of law under consideration in the present case. The observations made by this Court in that decision must be read in the light of the facts of that case.22. The decision of Mr. Justice P. Jaganmohan Reddy (as he then was) in Kumara Rajah of Venkatagiri v. Income-tax Officer, A-Ward Nellore, (1967) 64 ITR 264 (Andh Pra) sitting singly proceeded on the basis that the ratio of the decision of this Court in Raja Rameshwara Raos case, 1964-2 SCR 847 = (AIR 1967 SC 290 ) is equally applicable to payments under S 50 (2) of the Act. The same view was taken by the judges of the High Court who rendered the decisions under appeal. For the reasons mentioned earlier both those decisions must be held to have proceeded on an errorneous view of the decision of this Court.23. On behalf of the Revenue, reliance was placed on the decision of this Court in Chandroji Rao v. Commr. of Income-tax, Madhya Pradesh, 77 ITR 743 = (AIR 1970 SC 1582 ). To that decision both of us were parties. The question for decision in that case was whether the payments of interest made under S. 8 (2) of the Madhya Bharat Abolition of Jagirs Act, 1951 was a Revenue receipt or a capital receipt. That section provided for the payment of interest on the compensation payable to the Jagirdars by the Government under S. 8 (1) for resumption of their Jagir lands. This Court held that the receipt of interest under S. 8 (2) of that Act was a taxable income. The Court observed that there was a clear distinction between the compensation payable under S. 8 (1) and the interest payable under sub-s. (2) of Section 8. The payment under Section 8 (2) was given to the Jagirdar for his being kept out of the compensation amount to which he was entitled for a period of ten years and that it was not a payment for the acquisition of the Jagir. Therein the Court explained the distinction between the payment made for depriving the use of money to which a person is entitled and that made for the destruction or taking away his property, the former being a revenue receipt and the latter a capital receipt. | 1[ds]7. From the provisions of the Act, it is clear that the legislature must have been satisfied that the enquiries relating to the determination of the compensation of the Estates abolished was bound to take considerable time. In the very nature of things, those enquiries were bound to be prolonged. We have earlier seen that the Estates abolished vested in the Government as soon as the notification contemplated in Section 3 was issued. But the compensation payable to the Estate holders became due only when the same was finally determined under Section 39. In other words, the liability of the Government to pay the compensation finally determined arose only after the same was determined under Section 39 though the Act provided for payment of half the amount of compensation on the basis of a rough estimate within six months from the date of vesting. It may also be noted that there is no provision in the Act providing for payment of interest on the compensation payable as from the date of vesting.While it is true that the terminology used by the legislature in respect of a payment is not conclusive of the true character of that payment, it would be proper to proceed on the basis that the legislature knew what it was saying. The word compensation is a well known expression in law. When the legislature says that all payments made under the Act are in respect of the compensation payable to the former holders unless there are clear and convincing circumstances to show that one or more items of payment do not form part of the compensation payable, we must hold that those payments are what they are said to be by the statute. We must give the word "compensation" its normal and natural meaning. As seen earlier, in cl. (e) of S. 3 of the Act the legislature definitely says, that the holder or holders of the Estate falling within clauses (b) and (c) of S. 3 "shall be entitled only to compensation from the Government as provided in this Act". From this it follows that all payments made to them under the Act are compensation payable to them for taking over their Estates. Statutes which take away others property, by and large, provide for payment of compensation as from the date of taking. In the generality of those statutes, if immediate payment is not made at the time of taking provision is made for payment of interest on the compensation payable as from the date of taking. In the Act, there is no provision for payment of compensation at the time of the vesting of the Estates in the Government. Nor is there any provision for payment of interest on the compensation payable, as from the date of taking. The compensation determined has to be deposited only after the enquiry under S. 39 was over. We are told at the bar that the final determination of the compensation under S. 39 was made years after the Estate vested in the Government, though some advance compensation was paid. Hence there is force in the contention advanced on behalf of the assessee that the interim payments made were given as compensation for depriving the assesses of the income that they would have got from their agricultural lands; an income which would not have been assessable to tax under the Act if it had been received as agricultural income. The quantum of interim payments payable to the former holders of those Estates was determined by taking into consideration the income that the former owners would have received had they continued to be the owners of those Estates. This prima facie shows that the Government was compensating the former holders for taking away their income producing assets. The interim payments do not appear to have any relationship with the compensation ultimately payable. On the other hand, it takes note of the loss of income incurred by the former owners due to the abolition of the Estates. The contention that it was in lieu of interest on the compensation payable overlooks the fact that the liability of the Government to pay the compensation excepting to the extent provided in Section 54-A, arose only after the compensation payable was finally determined under S. 39. The interim payments were not fixed on the basis of the estimated compensation. They were fixed on the basis of the loss of income to the former owners. Under these circumstances, it is not possible to accept the contention that the interim payments were paid in lieu of interest or even that they represented compensation for loss of interest. If the legislature intended that the interim payments were to be made in lieu of the payment of interest on the compensation payable, nothing would have been easier than to say so in the Act. The term "interest" is a familiar term in law. In this very Act, the legislature had prescribed payment of interest under certain circumstances. As observed by this Court in Dr. Sham Lal v. Commr. of Income-tax, Punjab, 53 ITR 151 = (AIR 1964 SC 1878 ) the interest is a payment to be made by the debtor to the creditor when money was due to the creditor but was not paid or in other words was withheld from the creditor by the debtor after the time when the payment should have been made. Proceeding further, this Court observed in that case that interest whether it was statutory or contractual represented the profit the creditor would have made if he had the use of the money to which he was entitled to. In the cases before us, the assesses were not entitled to any compensation till the same was determined under S. 39. Therefore, no amount, to which they were entitled to, were, withheld from them. Hence on that account they were not entitled to any compensation in lieu of interest.10. It is true that while the Act calls the payments made under Sections 54-A, 54-B and 41 as compensation, the payments made under Section 50 (2) is called interim payments. This circumstance by itself will not be of much significance because, as seen earlier, S. 3 proceeds on the basis that all payments made under the Act are in the nature of compensation. Possibly the legislature wanted to make a distinction between compensation paid for the loss of income and that for the loss of assets.In our opinion, this sub-section, instead of assisting the Department, support the case of the assesses. All that that provision says is that the interim payments made under S. 50 (2) are not to be considered as compensation which the Government is required to deposit under S. 41 (1) or to any extent to be in lieu of such compensation. That section does not say that the interim payments are not compensation. It only says that it is no part of the compensation required to be deposited under S. 41 or in lieu of such compensation. That does not mean that it cannot be compensation for the recurring loss caused to the owner because of the taking away of an income producing asset without payment of compensation. It is not the contention of the assesses that the interim payments made are part of the total compensation payable for the acquisition of the Estates. According to them, it is a compensation for the destruction or taking away of an income producing asset of their till the assets taken from them are compensated.It is the character of the payments made under S. 14 that came up for consideration before this Court in Rameshwar Raos case, 1964-2 SCR 847 = AIR 1963 SC 290 (supra). Quite clearly the maintenance allowances paid were revenue receipts. Hence that decision has no bearing on the question of law under consideration in the present case. The observations made by this Court in that decision must be read in the light of the facts of that case.22. The decision of Mr. Justice P. Jaganmohan Reddy (as he then was) in Kumara Rajah of Venkatagiri v. Income-tax Officer, A-Ward Nellore, (1967) 64 ITR 264 (Andh Pra) sitting singly proceeded on the basis that the ratio of the decision of this Court in Raja Rameshwara Raos case, 1964-2 SCR 847 = (AIR 1967 SC 290 ) is equally applicable to payments under S 50 (2) of the Act. The same view was taken by the judges of the High Court who rendered the decisions under appeal. For the reasons mentioned earlier both those decisions must be held to have proceeded on an errorneous view of the decision of this Court.23. On behalf of the Revenue, reliance was placed on the decision of this Court in Chandroji Rao v. Commr. of Income-tax, Madhya Pradesh, 77 ITR 743 = (AIR 1970 SC 1582 ). To that decision both of us were parties. The question for decision in that case was whether the payments of interest made under S. 8 (2) of the Madhya Bharat Abolition of Jagirs Act, 1951 was a Revenue receipt or a capital receipt. That section provided for the payment of interest on the compensation payable to the Jagirdars by the Government under S. 8 (1) for resumption of their Jagir lands. This Court held that the receipt of interest under S. 8 (2) of that Act was a taxable income. The Court observed that there was a clear distinction between the compensation payable under S. 8 (1) and the interest payable under sub-s. (2) of Section 8. The payment under Section 8 (2) was given to the Jagirdar for his being kept out of the compensation amount to which he was entitled for a period of ten years and that it was not a payment for the acquisition of the Jagir. Therein the Court explained the distinction between the payment made for depriving the use of money to which a person is entitled and that made for the destruction or taking away his property, the former being a revenue receipt and the latter a capital receipt. | 1 | 5,602 | 1,832 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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the management of Estates was taken over. Section 14 of that Regulation provided that the amount payable to Jagirdars and Hissedars under that Regulation "shall be deemed to be interim maintenance allowances payable until such time as the terms for the commutation of Jagirs are determined". Section 3 of The Hyderabad Jagirs (Commutation) Regulation, 1359F laid down that commutation sum for a Jagir would be a certain multiple of its basic annual revenue. Section 6 of that Regulation provided that the commutation sum for each Jagir would be distributable between the Jagirdars and Hissedars in certain proportions. Sub-section (2) of S. 7 of that Regulation stated that payment to a Jagirdar of the commutation sum of the Jagir shall constitute the final commutation as from the 1st April 1950 of his rights in the Jagir and if any payment by way of an interim maintenance allowance under the said Regulation, that is, the former Regulation, is made in respect of a period subsequent to the said date, the amount of such payment shall be recovered from the recipient thereof by deduction from his share in the commutation sum for the Jagir. On an interpretation of S. 14 of the Regulation of 1358 F, this Court held that the interim maintenance allowances paid under that section were revenue receipts on which income-tax can be imposed. Some of the observations found in that judgment undoubtedly support the case of the Department. But we must see under what circumstances those observations were made.20. In order to understand the ratio of that decision, we must bear in mind the provisions of the two Regulations referred to hereinbefore. The first Regulation provided for the taking over of the management of the Estates and the second Regulation prescribed the mode of determining the commutation sum in respect of each jagir and for its payment. The character of the receipt which this Court was called upon to consider was the maintenance allowance paid under Section 14 of the first of the two Regulations. Under the Regulation, the Administrator of Jagirs took over the management of the Estates pending making provision for determination of the commutation amount. Provision in that regard was made under the second Regulation. Till the payment of the commutation sum, the Administrator merely managed the Estates on behalf of the former owners of those Estates. This is clear from Ss. 5, 8, 11, 12, 13 and 14 of the first Regulation. Under Section 5 thereof the quondam Jagirdars were required to hand over the possession of their Estates to the Jagir Administrator. Section 8 required the former Jagirdars to pay to the Government the administration expenses of their Estates. Section 11 provided for distribution of net income of an Estate between the Jagirdar and his Hissedars who were entitled to a share in the income of the Estate. Section 12 (1) says"From the amount payable to any person under section 11, there shall be deducted the amount of any maintenance allowance which under sub-section (2) is debitable to the share of that person."Section 13 required the Jagir Administrator to maintain separate account in respect of each Jagir and afford the concerned Jagirdar and Hissedar reasonable facilities for the inspection of the same. Section 14 reads:"The amounts payable to Jagirdars and Hissedars under the Regulation shall be deemed to be interim maintenance allowances payable until such time as the terms for the commutation of jagirs are determined."21. It is the character of the payments made under S. 14 that came up for consideration before this Court in Rameshwar Raos case, 1964-2 SCR 847 = AIR 1963 SC 290 (supra). Quite clearly the maintenance allowances paid were revenue receipts. Hence that decision has no bearing on the question of law under consideration in the present case. The observations made by this Court in that decision must be read in the light of the facts of that case.22. The decision of Mr. Justice P. Jaganmohan Reddy (as he then was) in Kumara Rajah of Venkatagiri v. Income-tax Officer, A-Ward Nellore, (1967) 64 ITR 264 (Andh Pra) sitting singly proceeded on the basis that the ratio of the decision of this Court in Raja Rameshwara Raos case, 1964-2 SCR 847 = (AIR 1967 SC 290 ) is equally applicable to payments under S 50 (2) of the Act. The same view was taken by the judges of the High Court who rendered the decisions under appeal. For the reasons mentioned earlier both those decisions must be held to have proceeded on an errorneous view of the decision of this Court.23. On behalf of the Revenue, reliance was placed on the decision of this Court in Chandroji Rao v. Commr. of Income-tax, Madhya Pradesh, 77 ITR 743 = (AIR 1970 SC 1582 ). To that decision both of us were parties. The question for decision in that case was whether the payments of interest made under S. 8 (2) of the Madhya Bharat Abolition of Jagirs Act, 1951 was a Revenue receipt or a capital receipt. That section provided for the payment of interest on the compensation payable to the Jagirdars by the Government under S. 8 (1) for resumption of their Jagir lands. This Court held that the receipt of interest under S. 8 (2) of that Act was a taxable income. The Court observed that there was a clear distinction between the compensation payable under S. 8 (1) and the interest payable under sub-s. (2) of Section 8. The payment under Section 8 (2) was given to the Jagirdar for his being kept out of the compensation amount to which he was entitled for a period of ten years and that it was not a payment for the acquisition of the Jagir. Therein the Court explained the distinction between the payment made for depriving the use of money to which a person is entitled and that made for the destruction or taking away his property, the former being a revenue receipt and the latter a capital receipt.
### Response:
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### Explanation:
the compensation excepting to the extent provided in Section 54-A, arose only after the compensation payable was finally determined under S. 39. The interim payments were not fixed on the basis of the estimated compensation. They were fixed on the basis of the loss of income to the former owners. Under these circumstances, it is not possible to accept the contention that the interim payments were paid in lieu of interest or even that they represented compensation for loss of interest. If the legislature intended that the interim payments were to be made in lieu of the payment of interest on the compensation payable, nothing would have been easier than to say so in the Act. The term "interest" is a familiar term in law. In this very Act, the legislature had prescribed payment of interest under certain circumstances. As observed by this Court in Dr. Sham Lal v. Commr. of Income-tax, Punjab, 53 ITR 151 = (AIR 1964 SC 1878 ) the interest is a payment to be made by the debtor to the creditor when money was due to the creditor but was not paid or in other words was withheld from the creditor by the debtor after the time when the payment should have been made. Proceeding further, this Court observed in that case that interest whether it was statutory or contractual represented the profit the creditor would have made if he had the use of the money to which he was entitled to. In the cases before us, the assesses were not entitled to any compensation till the same was determined under S. 39. Therefore, no amount, to which they were entitled to, were, withheld from them. Hence on that account they were not entitled to any compensation in lieu of interest.10. It is true that while the Act calls the payments made under Sections 54-A, 54-B and 41 as compensation, the payments made under Section 50 (2) is called interim payments. This circumstance by itself will not be of much significance because, as seen earlier, S. 3 proceeds on the basis that all payments made under the Act are in the nature of compensation. Possibly the legislature wanted to make a distinction between compensation paid for the loss of income and that for the loss of assets.In our opinion, this sub-section, instead of assisting the Department, support the case of the assesses. All that that provision says is that the interim payments made under S. 50 (2) are not to be considered as compensation which the Government is required to deposit under S. 41 (1) or to any extent to be in lieu of such compensation. That section does not say that the interim payments are not compensation. It only says that it is no part of the compensation required to be deposited under S. 41 or in lieu of such compensation. That does not mean that it cannot be compensation for the recurring loss caused to the owner because of the taking away of an income producing asset without payment of compensation. It is not the contention of the assesses that the interim payments made are part of the total compensation payable for the acquisition of the Estates. According to them, it is a compensation for the destruction or taking away of an income producing asset of their till the assets taken from them are compensated.It is the character of the payments made under S. 14 that came up for consideration before this Court in Rameshwar Raos case, 1964-2 SCR 847 = AIR 1963 SC 290 (supra). Quite clearly the maintenance allowances paid were revenue receipts. Hence that decision has no bearing on the question of law under consideration in the present case. The observations made by this Court in that decision must be read in the light of the facts of that case.22. The decision of Mr. Justice P. Jaganmohan Reddy (as he then was) in Kumara Rajah of Venkatagiri v. Income-tax Officer, A-Ward Nellore, (1967) 64 ITR 264 (Andh Pra) sitting singly proceeded on the basis that the ratio of the decision of this Court in Raja Rameshwara Raos case, 1964-2 SCR 847 = (AIR 1967 SC 290 ) is equally applicable to payments under S 50 (2) of the Act. The same view was taken by the judges of the High Court who rendered the decisions under appeal. For the reasons mentioned earlier both those decisions must be held to have proceeded on an errorneous view of the decision of this Court.23. On behalf of the Revenue, reliance was placed on the decision of this Court in Chandroji Rao v. Commr. of Income-tax, Madhya Pradesh, 77 ITR 743 = (AIR 1970 SC 1582 ). To that decision both of us were parties. The question for decision in that case was whether the payments of interest made under S. 8 (2) of the Madhya Bharat Abolition of Jagirs Act, 1951 was a Revenue receipt or a capital receipt. That section provided for the payment of interest on the compensation payable to the Jagirdars by the Government under S. 8 (1) for resumption of their Jagir lands. This Court held that the receipt of interest under S. 8 (2) of that Act was a taxable income. The Court observed that there was a clear distinction between the compensation payable under S. 8 (1) and the interest payable under sub-s. (2) of Section 8. The payment under Section 8 (2) was given to the Jagirdar for his being kept out of the compensation amount to which he was entitled for a period of ten years and that it was not a payment for the acquisition of the Jagir. Therein the Court explained the distinction between the payment made for depriving the use of money to which a person is entitled and that made for the destruction or taking away his property, the former being a revenue receipt and the latter a capital receipt.
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GURMIT SINGH BHATIA Vs. KIRAN KANT ROBINSON | questions involved in the suit it is abundantly clear that the legislature clearly meant that the controversies raised as between the parties to the litigation must be gone into only, that is to say, controversies with regard to the right which is set up and the relief claimed on one side and denied on the other and not the controversies which may arise between the plaintiff¬appellant and the defendants inter se or questions between the parties to the suit and a third party. In our view, therefore, the court cannot allow adjudication of collateral matters so as to convert a suit for specific performance of contract for sale into a complicated suit for title between the plaintiff¬appellant on one hand and Respondents 2 and 3 and Respondents 1 and 4 to 11 on the other. This addition, if allowed, would lead to a complicated litigation by which the trial and decision of serious questions which are totally outside the scope of the suit would have to be gone into. As the decree of a suit for specific performance of the contract for sale, if passed, cannot, at all, affect the right, title and interest of Respondents 1 and 4 to 11 in respect of the contracted property and in view of the detailed discussion made hereinearlier, Respondents 1 and 4 to 11 would not, at all, be necessary to be added in the instant suit for specific performance of the contract for sale. That thereafter, after observing and holding as above, this Court further observed that in view of the principle that the plaintiff who has filed a suit for specific performance of the contract to sell is the dominus litis, he cannot be forced to add parties against whom, he does not want to fight unless it is a compulsion of the rule of law. In the aforesaid decision in the case of Kasturi(supra), it was contended on behalf of the third parties that they are in possession of the suit property on the basis of their independent title to the same and as the plaintiff had also claimed the relief of possession in the plaint and the issue with regard to possession is common to the parties including the third parties, and therefore, the same can be settled in the suit itself. It was further submitted on behalf of the third parties that to avoid the multiplicity of the suits, it would be appropriate to join them as party defendants. This Court did not accept the aforesaid submission by observing that merely in order to find out who is in possession of the contracted property, a third party or a stranger to the contract cannot be added in a suit for specific performance of the contract to sell because they are not necessary parties as there was no semblance of right to some relief against the party to the contract. It is further observed and held that in a suit for specific performance of the contract to sell the lis between the vendor and the persons in whose favour agreement to sell is executed shall only be gone into and it is also not open to the Court to decide whether any other parties have acquired any title and possession of the contracted property. It is further observed and held by this Court in the aforesaid decision that if the plaintiff who has filed a suit for specific performance of the contract to sell, even after receiving the notice of claim of title and possession by other persons (not parties to the suit and even not parties to the agreement to sell for which a decree for specific performance is sought) does not want to join them in the pending suit, it is always done at the risk of the plaintiff because he cannot be forced to join the third parties as party¬defendants in such suit. The aforesaid observations are made by this Court considering the principle that plaintiff is the dominus litis and cannot be forced to add parties against whom he does not want to fight unless there is a compulsion of the rule of law. Therefore, considering the decision of this Court in the case of Kasturi (supra), the appellant cannot be impleaded as a defendant in the suit filed by the original plaintiffs for specific performance of the contract between the original plaintiffs and original defendant no.1 and in a suit for specific performance of the contract to which the appellant is not a party and that too against the wish of the plaintiffs. The plaintiffs cannot be forced to add party against whom he does not want to fight. If he does so, in that case, it will be at the risk of the plaintiffs. 6. Now so far as the reliance placed upon the decision of this Court in the case of Robin Ramjibhai Patel (supra) and the decision of the Bombay High Court in the case of Shri Swastik Developers (supra), relied upon by the learned Senior Advocate for the appellant is concerned, the aforesaid decisions shall not be applicable to the facts of the case on hand as in both the aforesaid cases, it was the plaintiff who submitted an application to implead the third parties/subsequent purchasers who claimed title under the vendor of the plaintiff. Position will be different when the plaintiff submits an application to implead the subsequent purchaser as a party and when the plaintiff opposes such an application for impleadment. This is the distinguishing feature in the aforesaid two decisions and in the decision of this Court in the case of Kasturi(supra). 7. In view of the above and for the reasons stated above, we are in complete agreement with the view taken by the High Court. No interference of this Court is called for. The appellant cannot be impleaded as a defendant in the suit for specific performance of the contract between the original plaintiffs and original defendant no.1 against the wish of the plaintiffs. | 0[ds]In the aforesaid decision in the case of Kasturi(supra), it was contended on behalf of the third parties that they are in possession of the suit property on the basis of their independent title to the same and as the plaintiff had also claimed the relief of possession in the plaint and the issue with regard to possession is common to the parties including the third parties, and therefore, the same can be settled in the suit itself. It was further submitted on behalf of the third parties that to avoid the multiplicity of the suits, it would be appropriate to join them as party defendants. This Court did not accept the aforesaid submission by observing that merely in order to find out who is in possession of the contracted property, a third party or a stranger to the contract cannot be added in a suit for specific performance of the contract to sell because they are not necessary parties as there was no semblance of right to some relief against the party to the contract. It is further observed and held that in a suit for specific performance of the contract to sell the lis between the vendor and the persons in whose favour agreement to sell is executed shall only be gone into and it is also not open to the Court to decide whether any other parties have acquired any title and possession of the contracted property. It is further observed and held by this Court in the aforesaid decision that if the plaintiff who has filed a suit for specific performance of the contract to sell, even after receiving the notice of claim of title and possession by other persons (not parties to the suit and even not parties to the agreement to sell for which a decree for specific performance is sought) does not want to join them in the pending suit, it is always done at the risk of the plaintiff because he cannot be forced to join the third parties as party¬defendants in such suit. The aforesaid observations are made by this Court considering the principle that plaintiff is the dominus litis and cannot be forced to add parties against whom he does not want to fight unless there is a compulsion of the rule of law. Therefore, considering the decision of this Court in the case of Kasturi (supra), the appellant cannot be impleaded as a defendant in the suit filed by the original plaintiffs for specific performance of the contract between the original plaintiffs and original defendant no.1 and in a suit for specific performance of the contract to which the appellant is not a party and that too against the wish of the plaintiffs. The plaintiffs cannot be forced to add party against whom he does not want to fight. If he does so, in that case, it will be at the risk of the plaintiffs6. Now so far as the reliance placed upon the decision of this Court in the case of Robin Ramjibhai Patel (supra) and the decision of the Bombay High Court in the case of Shri Swastik Developers (supra), relied upon by the learned Senior Advocate for the appellant is concerned, the aforesaid decisions shall not be applicable to the facts of the case on hand as in both the aforesaid cases, it was the plaintiff who submitted an application to implead the third parties/subsequent purchasers who claimed title under the vendor of the plaintiff. Position will be different when the plaintiff submits an application to implead the subsequent purchaser as a party and when the plaintiff opposes such an application for impleadment. This is the distinguishing feature in the aforesaid two decisions and in the decision of this Court in the case of Kasturi(supra)7. In view of the above and for the reasons stated above, we are in complete agreement with the view taken by the High Court. No interference of this Court is called for. The appellant cannot be impleaded as a defendant in the suit for specific performance of the contract between the original plaintiffs and original defendant no.1 against the wish of the plaintiffs. | 0 | 3,919 | 747 | ### Instruction:
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questions involved in the suit it is abundantly clear that the legislature clearly meant that the controversies raised as between the parties to the litigation must be gone into only, that is to say, controversies with regard to the right which is set up and the relief claimed on one side and denied on the other and not the controversies which may arise between the plaintiff¬appellant and the defendants inter se or questions between the parties to the suit and a third party. In our view, therefore, the court cannot allow adjudication of collateral matters so as to convert a suit for specific performance of contract for sale into a complicated suit for title between the plaintiff¬appellant on one hand and Respondents 2 and 3 and Respondents 1 and 4 to 11 on the other. This addition, if allowed, would lead to a complicated litigation by which the trial and decision of serious questions which are totally outside the scope of the suit would have to be gone into. As the decree of a suit for specific performance of the contract for sale, if passed, cannot, at all, affect the right, title and interest of Respondents 1 and 4 to 11 in respect of the contracted property and in view of the detailed discussion made hereinearlier, Respondents 1 and 4 to 11 would not, at all, be necessary to be added in the instant suit for specific performance of the contract for sale. That thereafter, after observing and holding as above, this Court further observed that in view of the principle that the plaintiff who has filed a suit for specific performance of the contract to sell is the dominus litis, he cannot be forced to add parties against whom, he does not want to fight unless it is a compulsion of the rule of law. In the aforesaid decision in the case of Kasturi(supra), it was contended on behalf of the third parties that they are in possession of the suit property on the basis of their independent title to the same and as the plaintiff had also claimed the relief of possession in the plaint and the issue with regard to possession is common to the parties including the third parties, and therefore, the same can be settled in the suit itself. It was further submitted on behalf of the third parties that to avoid the multiplicity of the suits, it would be appropriate to join them as party defendants. This Court did not accept the aforesaid submission by observing that merely in order to find out who is in possession of the contracted property, a third party or a stranger to the contract cannot be added in a suit for specific performance of the contract to sell because they are not necessary parties as there was no semblance of right to some relief against the party to the contract. It is further observed and held that in a suit for specific performance of the contract to sell the lis between the vendor and the persons in whose favour agreement to sell is executed shall only be gone into and it is also not open to the Court to decide whether any other parties have acquired any title and possession of the contracted property. It is further observed and held by this Court in the aforesaid decision that if the plaintiff who has filed a suit for specific performance of the contract to sell, even after receiving the notice of claim of title and possession by other persons (not parties to the suit and even not parties to the agreement to sell for which a decree for specific performance is sought) does not want to join them in the pending suit, it is always done at the risk of the plaintiff because he cannot be forced to join the third parties as party¬defendants in such suit. The aforesaid observations are made by this Court considering the principle that plaintiff is the dominus litis and cannot be forced to add parties against whom he does not want to fight unless there is a compulsion of the rule of law. Therefore, considering the decision of this Court in the case of Kasturi (supra), the appellant cannot be impleaded as a defendant in the suit filed by the original plaintiffs for specific performance of the contract between the original plaintiffs and original defendant no.1 and in a suit for specific performance of the contract to which the appellant is not a party and that too against the wish of the plaintiffs. The plaintiffs cannot be forced to add party against whom he does not want to fight. If he does so, in that case, it will be at the risk of the plaintiffs. 6. Now so far as the reliance placed upon the decision of this Court in the case of Robin Ramjibhai Patel (supra) and the decision of the Bombay High Court in the case of Shri Swastik Developers (supra), relied upon by the learned Senior Advocate for the appellant is concerned, the aforesaid decisions shall not be applicable to the facts of the case on hand as in both the aforesaid cases, it was the plaintiff who submitted an application to implead the third parties/subsequent purchasers who claimed title under the vendor of the plaintiff. Position will be different when the plaintiff submits an application to implead the subsequent purchaser as a party and when the plaintiff opposes such an application for impleadment. This is the distinguishing feature in the aforesaid two decisions and in the decision of this Court in the case of Kasturi(supra). 7. In view of the above and for the reasons stated above, we are in complete agreement with the view taken by the High Court. No interference of this Court is called for. The appellant cannot be impleaded as a defendant in the suit for specific performance of the contract between the original plaintiffs and original defendant no.1 against the wish of the plaintiffs.
### Response:
0
### Explanation:
In the aforesaid decision in the case of Kasturi(supra), it was contended on behalf of the third parties that they are in possession of the suit property on the basis of their independent title to the same and as the plaintiff had also claimed the relief of possession in the plaint and the issue with regard to possession is common to the parties including the third parties, and therefore, the same can be settled in the suit itself. It was further submitted on behalf of the third parties that to avoid the multiplicity of the suits, it would be appropriate to join them as party defendants. This Court did not accept the aforesaid submission by observing that merely in order to find out who is in possession of the contracted property, a third party or a stranger to the contract cannot be added in a suit for specific performance of the contract to sell because they are not necessary parties as there was no semblance of right to some relief against the party to the contract. It is further observed and held that in a suit for specific performance of the contract to sell the lis between the vendor and the persons in whose favour agreement to sell is executed shall only be gone into and it is also not open to the Court to decide whether any other parties have acquired any title and possession of the contracted property. It is further observed and held by this Court in the aforesaid decision that if the plaintiff who has filed a suit for specific performance of the contract to sell, even after receiving the notice of claim of title and possession by other persons (not parties to the suit and even not parties to the agreement to sell for which a decree for specific performance is sought) does not want to join them in the pending suit, it is always done at the risk of the plaintiff because he cannot be forced to join the third parties as party¬defendants in such suit. The aforesaid observations are made by this Court considering the principle that plaintiff is the dominus litis and cannot be forced to add parties against whom he does not want to fight unless there is a compulsion of the rule of law. Therefore, considering the decision of this Court in the case of Kasturi (supra), the appellant cannot be impleaded as a defendant in the suit filed by the original plaintiffs for specific performance of the contract between the original plaintiffs and original defendant no.1 and in a suit for specific performance of the contract to which the appellant is not a party and that too against the wish of the plaintiffs. The plaintiffs cannot be forced to add party against whom he does not want to fight. If he does so, in that case, it will be at the risk of the plaintiffs6. Now so far as the reliance placed upon the decision of this Court in the case of Robin Ramjibhai Patel (supra) and the decision of the Bombay High Court in the case of Shri Swastik Developers (supra), relied upon by the learned Senior Advocate for the appellant is concerned, the aforesaid decisions shall not be applicable to the facts of the case on hand as in both the aforesaid cases, it was the plaintiff who submitted an application to implead the third parties/subsequent purchasers who claimed title under the vendor of the plaintiff. Position will be different when the plaintiff submits an application to implead the subsequent purchaser as a party and when the plaintiff opposes such an application for impleadment. This is the distinguishing feature in the aforesaid two decisions and in the decision of this Court in the case of Kasturi(supra)7. In view of the above and for the reasons stated above, we are in complete agreement with the view taken by the High Court. No interference of this Court is called for. The appellant cannot be impleaded as a defendant in the suit for specific performance of the contract between the original plaintiffs and original defendant no.1 against the wish of the plaintiffs.
|
Yashpal Vs. State Of Chhattisgarh | deposit to ensure that the University complies with and functions as per the Act. In Azeez Basha v. Union of India (supra), the history of establishment of Aligarh Muslim University has been given. Though in the year 1877 the Viceroy laid the foundation stone for the establishment of Muhammadan Ango-Oriental College, Aligarh, which over a period of time became a flourishing institution, yet, when a demand was made to establish a University, the Government of India made a condition that at least Rs.30 lakhs must be collected and thereafter the University was established by the 1920 Act. It is extremely difficult to visualize the real value and purchasing power of Rs.30 lakhs of the year 1920 at the present juncture. For those who want to establish a University, a sum of Rs.2 crores is just a pittance. The fact that many of the private Universities have challenged the provisions of the amending Act itself shows their intention and purpose that they do not want to create any infrastructure but want to have the right of conferring degrees and earn money thereby. However, it is not necessary to examine the challenge raised to the amending Act in detail, as we have already held that Sections 5 and 6 are wholly ultra vires and all notifications issued thereunder notifying the Universities being invalid are liable to be struck down. 43. Shri Ravi Shankar Prashad, learned senior counsel for the State of Chhattisgarh, has submitted that the impugned Act was passed in order to attract private capital as the State does not have enough funds to establish educational institutions and Universities. The Policy of Government of India has undergone a change since 1991 and emphasis is on privatization. The Act was enacted so that facility for higher education in the State of Chhattisgarh may be improved and a large volume of students may get opportunity to pursue higher studies. He has also submitted that the UGC itself has made regulations governing admission and fee in private non-aided professional institutions which makes reference to joint venture between a private trust or society and the State Government. The enactment, it has been urged, is an experiment in the changing world scenario where the trend is towards globalization. Learned counsel has further submitted that the amending Act makes it mandatory that the main campus of the University should be situated in the State of Chhattisgarh and the Regulatory Commission has been established which will ensure a foolproof monitoring of all the private Universities. He has urged that Regulation 3.3.1 of the UGC Regulations which requires that off-campus centres or study centres shall be set up with the prior approval of UGC and that of the State Government where the centre is proposed to be opened, is ultra vires. 44. There is hardly any merit in the submission raised. The impugned Act which enables only a proposal of a sponsoring body to be notified as a University is not likely to attract private capital and a University so notified cannot provide education of any kind much less of good quality to a large body of students. What is necessary is actual establishment of institutions having all the infrastructural facilities and qualified teachers to teach there. Only such colleges or institutions which impart quality education allure the best students. Until such institutions are established which provide high level of teaching and other facilities like well equipped libraries and laboratories and a good academic atmosphere, good students would not be attracted. In the current scenario, students are prepared to go to any corner of the country for getting good education. What is necessary is a large number of good colleges and institutions and not Universities without any teaching facility but having the authority to confer degrees. If good institutions are established for providing higher education, they can be conferred the status of a deemed University by the Central Government in accordance with Section 3 of UGC Act or they can be affiliated to the already existing Universities. The impugned Act has neither achieved nor is capable of achieving the object sought to be projected by the learned counsel as it enables a proposal alone being notified as a University. 45. As a consequence of the discussion made and the findings recorded that the provisions of Sections 5 and 6 of the Act are ultra vires and the Gazette Notifications notifying the Universities are liable to be quashed, all such Universities shall cease to exist. Shri Amarendra Sharan, learned Additional Solicitor General has submitted that the UGC had conducted an inquiry and it was found that most of the Universities were non-existent, but the report was not placed before the Court as the complete exercise had not been done. Learned counsel for the Universities have seriously disputed this fact and have submitted that the Universities are functioning. We have not gone into this question as it is purely factual. In order to protect the interests of the students who may be actually studying in the institutions established by such private Universities, it is directed that the State Government may take appropriate measures to have such institutions affiliated to the already existing State Universities in Chhattisgarh. We are issuing this direction keeping in mind the interest of the students and also Sections 33 and 34 of the Act, which contemplate dissolution of the sponsoring body and liquidation of a University whereunder responsibility has to be assumed by the State Government. It is, however, made clear that the benefit of affiliation of an institution shall be extended only if it fulfills the requisite norms and standards laid down for such purpose and not to every kind of institution. Regarding technical, medical or dental colleges, etc. affiliation may be accorded if they have been established after fulfilling the prescribed criteria laid down by the All India Council of Technical Education, Medical Council of India, Dental Council of India or any other statutory authority and with their approval or sanction as prescribed by law. | 1[ds]20. The consistent and settled view of this Court, therefore, is that in spite of incorporation of Universities as a legislative head being in the State List, the whole gamut of the University which will include teaching, quality of education being imparted, curriculum, standard of examination and evaluation and also research activity being carried on will not come within the purview of the State legislature on account of a specific Entry on co- ordination and determination of standards in institutions for higher education or research and scientific and technical education being in the Union List for which the Parliament alone is competent. It is the responsibility of the Parliament to ensure that proper standards are maintained in institutions for higher education or research throughout the country and also uniformity in standards is maintained.The State Legislature is undoubtedly empowered to legislate and make an enactment for incorporation and establishment of Universities in view of Entry 32 of List II and Entry 25 of List III. The "University" as a topic of legislation has not been introduced for the first time in the Seventh Schedule of the Constitution but was already there in the Government of India Act, where Entry 13 of List I related to Banaras Hindu University and Aligarh Muslim University and Entry 17 of List II was education including Universities other than those specified in Entry 13 of List I. The framers of the Constitution had the same concept of "University" in their mind as was there in the Government of India Act when they made the relevant entries in the Seventh Schedule of the Constitution. Keeping in view the principles of legislative practice, the word "University" should be given the same meaning as it was generally understood at the relevant time having due regard to what is ordinarily treated as embraced within that topic or2. Any State legislation which stultifies or sets at naught an enactment validly made by Parliament would be wholly ultra vires. We are fortified in our view by a Constitution Bench decision in R. Chitralekha v. State of Mysore AIR 1964 SC 1823 where power of the State under Entry 11 List II (as it then existed), and Entry 25 List III qua Entry 66 List I came up for consideration. Subba Rao, J. after quoting the following passage from Gujarat University vs. Shri Krishna AIR 1963 SC 703 whole scheme of the impugned Act, especially the effect of Sections 4, 5, 6 thereof and the result which it has led to in notifying as many as 112 Universities within a short span of one year on the basis of proposals made on paper with many or most of them having almost zero infrastructural facilities clearly shows that the relevant provisions of the Act have completely stultified the power of the Parliament under Entry 66 to make provision for co-ordination and determination of standards in institutions for higher education like Universities, the provisions of the UGC Act and also the functioning of University Grants Commission. Sections 5 and 6 of the impugned Act are, therefore, wholly ultra vires the Constitution of India and are liable to be struckobjectives mentioned in clauses (1) to (5) are the normal objectives of a University. However, a University cannot be established only to provide consultancy to the industry and public organizations [clause (6)] or to establish examination centres [clause (8)] or to institute degrees, diplomas, certificates and other academic distinctions on the basis of examination or any other method of evaluation [clause (9)]. Since sub-section (1) of Section 4 uses the expression "for carrying out any or all of the objects", it is obvious that a University can be established only for any one of the aforesaid objectives. This is clearly a colourable piece of legislation being beyond the legislative competence of the State legislature as the relevant entries in List II and List III of Seventh Schedule of the Constitution do not contemplate creation or establishment of such kind of aview of Regulation 3.1, a private University can only be established either by a separate Act or by one compendious Act where the legislature specifically provides for establishment of the said University. Though an attempt has been made in Section 5(1)(b) of the amended Act in this regard, but the same does not conform to the Regulations inasmuch as the initial notification notifying in the Official Gazette that the University is established, is done by the executive order and not by any Act ofare of the opinion that having regard to the Constitutional scheme and in order to ensure that the enactment made by the Parliament, namely University Grants Commission Act is able to achieve the objective for which it has been made and the UGC is able to perform its duties and responsibilities, and further that the State enactment does not come in conflict with the central legislation and create any hindrance or obstacle in the working of the later, it is necessary to read the expression "established or incorporated" as "established and incorporated" insofar as the private Universities areour opinion, the challenge raised has hardly any substance. In order to establish a University, there must be adequate land on which the campus may be made and necessary infrastructural facilities provided. No University can come into existence without a proper campus which requires land. Similarly, for those who want to establish a University, a sum of Rs.2 crores is a very small amount. It will be seen that Section 4(1)(c) provides that endowment fund shall be used as security deposit to ensure that the University complies with and functions as per the Act. In Azeez Basha v. Union of India (supra), the history of establishment of Aligarh Muslim University has been given. Though in the year 1877 the Viceroy laid the foundation stone for the establishment of Muhammadan Ango-Oriental College, Aligarh, which over a period of time became a flourishing institution, yet, when a demand was made to establish a University, the Government of India made a condition that at least Rs.30 lakhs must be collected and thereafter the University was established by the 1920 Act. It is extremely difficult to visualize the real value and purchasing power of Rs.30 lakhs of the year 1920 at the present juncture. For those who want to establish a University, a sum of Rs.2 crores is just a pittance. The fact that many of the private Universities have challenged the provisions of the amending Act itself shows their intention and purpose that they do not want to create any infrastructure but want to have the right of conferring degrees and earn money thereby. However, it is not necessary to examine the challenge raised to the amending Act in detail, as we have already held that Sections 5 and 6 are wholly ultra vires and all notifications issued thereunder notifying the Universities being invalid are liable to be struck down. | 1 | 18,396 | 1,264 | ### 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:
deposit to ensure that the University complies with and functions as per the Act. In Azeez Basha v. Union of India (supra), the history of establishment of Aligarh Muslim University has been given. Though in the year 1877 the Viceroy laid the foundation stone for the establishment of Muhammadan Ango-Oriental College, Aligarh, which over a period of time became a flourishing institution, yet, when a demand was made to establish a University, the Government of India made a condition that at least Rs.30 lakhs must be collected and thereafter the University was established by the 1920 Act. It is extremely difficult to visualize the real value and purchasing power of Rs.30 lakhs of the year 1920 at the present juncture. For those who want to establish a University, a sum of Rs.2 crores is just a pittance. The fact that many of the private Universities have challenged the provisions of the amending Act itself shows their intention and purpose that they do not want to create any infrastructure but want to have the right of conferring degrees and earn money thereby. However, it is not necessary to examine the challenge raised to the amending Act in detail, as we have already held that Sections 5 and 6 are wholly ultra vires and all notifications issued thereunder notifying the Universities being invalid are liable to be struck down. 43. Shri Ravi Shankar Prashad, learned senior counsel for the State of Chhattisgarh, has submitted that the impugned Act was passed in order to attract private capital as the State does not have enough funds to establish educational institutions and Universities. The Policy of Government of India has undergone a change since 1991 and emphasis is on privatization. The Act was enacted so that facility for higher education in the State of Chhattisgarh may be improved and a large volume of students may get opportunity to pursue higher studies. He has also submitted that the UGC itself has made regulations governing admission and fee in private non-aided professional institutions which makes reference to joint venture between a private trust or society and the State Government. The enactment, it has been urged, is an experiment in the changing world scenario where the trend is towards globalization. Learned counsel has further submitted that the amending Act makes it mandatory that the main campus of the University should be situated in the State of Chhattisgarh and the Regulatory Commission has been established which will ensure a foolproof monitoring of all the private Universities. He has urged that Regulation 3.3.1 of the UGC Regulations which requires that off-campus centres or study centres shall be set up with the prior approval of UGC and that of the State Government where the centre is proposed to be opened, is ultra vires. 44. There is hardly any merit in the submission raised. The impugned Act which enables only a proposal of a sponsoring body to be notified as a University is not likely to attract private capital and a University so notified cannot provide education of any kind much less of good quality to a large body of students. What is necessary is actual establishment of institutions having all the infrastructural facilities and qualified teachers to teach there. Only such colleges or institutions which impart quality education allure the best students. Until such institutions are established which provide high level of teaching and other facilities like well equipped libraries and laboratories and a good academic atmosphere, good students would not be attracted. In the current scenario, students are prepared to go to any corner of the country for getting good education. What is necessary is a large number of good colleges and institutions and not Universities without any teaching facility but having the authority to confer degrees. If good institutions are established for providing higher education, they can be conferred the status of a deemed University by the Central Government in accordance with Section 3 of UGC Act or they can be affiliated to the already existing Universities. The impugned Act has neither achieved nor is capable of achieving the object sought to be projected by the learned counsel as it enables a proposal alone being notified as a University. 45. As a consequence of the discussion made and the findings recorded that the provisions of Sections 5 and 6 of the Act are ultra vires and the Gazette Notifications notifying the Universities are liable to be quashed, all such Universities shall cease to exist. Shri Amarendra Sharan, learned Additional Solicitor General has submitted that the UGC had conducted an inquiry and it was found that most of the Universities were non-existent, but the report was not placed before the Court as the complete exercise had not been done. Learned counsel for the Universities have seriously disputed this fact and have submitted that the Universities are functioning. We have not gone into this question as it is purely factual. In order to protect the interests of the students who may be actually studying in the institutions established by such private Universities, it is directed that the State Government may take appropriate measures to have such institutions affiliated to the already existing State Universities in Chhattisgarh. We are issuing this direction keeping in mind the interest of the students and also Sections 33 and 34 of the Act, which contemplate dissolution of the sponsoring body and liquidation of a University whereunder responsibility has to be assumed by the State Government. It is, however, made clear that the benefit of affiliation of an institution shall be extended only if it fulfills the requisite norms and standards laid down for such purpose and not to every kind of institution. Regarding technical, medical or dental colleges, etc. affiliation may be accorded if they have been established after fulfilling the prescribed criteria laid down by the All India Council of Technical Education, Medical Council of India, Dental Council of India or any other statutory authority and with their approval or sanction as prescribed by law.
### Response:
1
### Explanation:
in view of Entry 32 of List II and Entry 25 of List III. The "University" as a topic of legislation has not been introduced for the first time in the Seventh Schedule of the Constitution but was already there in the Government of India Act, where Entry 13 of List I related to Banaras Hindu University and Aligarh Muslim University and Entry 17 of List II was education including Universities other than those specified in Entry 13 of List I. The framers of the Constitution had the same concept of "University" in their mind as was there in the Government of India Act when they made the relevant entries in the Seventh Schedule of the Constitution. Keeping in view the principles of legislative practice, the word "University" should be given the same meaning as it was generally understood at the relevant time having due regard to what is ordinarily treated as embraced within that topic or2. Any State legislation which stultifies or sets at naught an enactment validly made by Parliament would be wholly ultra vires. We are fortified in our view by a Constitution Bench decision in R. Chitralekha v. State of Mysore AIR 1964 SC 1823 where power of the State under Entry 11 List II (as it then existed), and Entry 25 List III qua Entry 66 List I came up for consideration. Subba Rao, J. after quoting the following passage from Gujarat University vs. Shri Krishna AIR 1963 SC 703 whole scheme of the impugned Act, especially the effect of Sections 4, 5, 6 thereof and the result which it has led to in notifying as many as 112 Universities within a short span of one year on the basis of proposals made on paper with many or most of them having almost zero infrastructural facilities clearly shows that the relevant provisions of the Act have completely stultified the power of the Parliament under Entry 66 to make provision for co-ordination and determination of standards in institutions for higher education like Universities, the provisions of the UGC Act and also the functioning of University Grants Commission. Sections 5 and 6 of the impugned Act are, therefore, wholly ultra vires the Constitution of India and are liable to be struckobjectives mentioned in clauses (1) to (5) are the normal objectives of a University. However, a University cannot be established only to provide consultancy to the industry and public organizations [clause (6)] or to establish examination centres [clause (8)] or to institute degrees, diplomas, certificates and other academic distinctions on the basis of examination or any other method of evaluation [clause (9)]. Since sub-section (1) of Section 4 uses the expression "for carrying out any or all of the objects", it is obvious that a University can be established only for any one of the aforesaid objectives. This is clearly a colourable piece of legislation being beyond the legislative competence of the State legislature as the relevant entries in List II and List III of Seventh Schedule of the Constitution do not contemplate creation or establishment of such kind of aview of Regulation 3.1, a private University can only be established either by a separate Act or by one compendious Act where the legislature specifically provides for establishment of the said University. Though an attempt has been made in Section 5(1)(b) of the amended Act in this regard, but the same does not conform to the Regulations inasmuch as the initial notification notifying in the Official Gazette that the University is established, is done by the executive order and not by any Act ofare of the opinion that having regard to the Constitutional scheme and in order to ensure that the enactment made by the Parliament, namely University Grants Commission Act is able to achieve the objective for which it has been made and the UGC is able to perform its duties and responsibilities, and further that the State enactment does not come in conflict with the central legislation and create any hindrance or obstacle in the working of the later, it is necessary to read the expression "established or incorporated" as "established and incorporated" insofar as the private Universities areour opinion, the challenge raised has hardly any substance. In order to establish a University, there must be adequate land on which the campus may be made and necessary infrastructural facilities provided. No University can come into existence without a proper campus which requires land. Similarly, for those who want to establish a University, a sum of Rs.2 crores is a very small amount. It will be seen that Section 4(1)(c) provides that endowment fund shall be used as security deposit to ensure that the University complies with and functions as per the Act. In Azeez Basha v. Union of India (supra), the history of establishment of Aligarh Muslim University has been given. Though in the year 1877 the Viceroy laid the foundation stone for the establishment of Muhammadan Ango-Oriental College, Aligarh, which over a period of time became a flourishing institution, yet, when a demand was made to establish a University, the Government of India made a condition that at least Rs.30 lakhs must be collected and thereafter the University was established by the 1920 Act. It is extremely difficult to visualize the real value and purchasing power of Rs.30 lakhs of the year 1920 at the present juncture. For those who want to establish a University, a sum of Rs.2 crores is just a pittance. The fact that many of the private Universities have challenged the provisions of the amending Act itself shows their intention and purpose that they do not want to create any infrastructure but want to have the right of conferring degrees and earn money thereby. However, it is not necessary to examine the challenge raised to the amending Act in detail, as we have already held that Sections 5 and 6 are wholly ultra vires and all notifications issued thereunder notifying the Universities being invalid are liable to be struck down.
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Milkhiram (India) Private Ltd. & Others Vs. Chamanlal Bros | make it impossible to give effect to the provisions of O. 37 which have been enacted, as rightly pointed out by Bose, J. to ensure speedy decisions in cases of certain types. It will be seen that O. 37, R. 2 is applicable to what may be compendiously described as commercial causes. Trading and commercial operations are liable to be seriously impeded if, in particular, money disputes between the parties are not adjudicated upon expeditiously. It is these considerations which have to be borne in mind for the purpose of deciding whether leave to defend should be given or withheld and if given should be subjected to a condition. 6. It may be mentioned that this Court relied upon the decision in Jacobs v. Booths Distillery Co. (1901) 85 LT 262, in which the House of Lords held that whenever a defence raises a triable issue leave must. be given and also referred to two subsequent decisions where it was held that when such is the case leave must be given unconditionally. In this connection we may refer to the following observations of Devlin, L. J. in Fieldrank Ltd. v. Stein (1961) 3 All ER 681 at pp. 682-3. "The broad principle, which is founded on (1901) 85 LT 262, is summarised on p. 266 of the Annual Practice (1962 Edn.) in the following terms : "The principle on which the Court acts is that where the defendant can show by affidavit that there is a bona fide triable issue, he is to be allowed to defend as to that issue without condition." If that principle were mandatory, then the concession by counsel for the plaintiffs that there is here a triable issue would mean at once that the appeal ought to be allowed; but counsel for the plaintiffs has drawn our attention to some comments that have been made on (1901) 85 LT 262. They will be found at pp. 251 and 267 of the Annual Practice, 1962. It is suggested (see p. 251) that possibly the case if it is closely examined, does not go as far as it has hitherto been thought to go; and on the top of p. 267 the learned editors of the Annual Practice have this note: "The condition of payment into Court, or giving security, is nowadays more often imposed than formerly, and not only where the defendant consents but also where there is a good ground in the evidence for believing that the defence set up is a sham defence and the master is prepared very nearly to give judgment for the plaintiff." It is worth noting also that in Lloyds Banking Co. v. Ogle (1876) 1 Ex. D. 262, at p. 264 in a dictum which was said to have been overruled or qualified by (1901) 85 LT 262, Bramwell, B., had said that ". . . . . . . . . . . those conditions (of bringing money into Court or giving security) should only be applied when there is something suspicious in the defendants mode of presenting his case." I should be very glad to see some relaxation of the strict rule in (1901) 85 LT 262. I think that any Judge who has sat in chambers in R.S.C., Ord. 14 summonses has had the experience of a case in which, although he cannot say for certain that there is not a triable issue, nevertheless he is left with a real doubt about the defendants good faith, and would like to protect the plaintiff, especially if there is not grave hardship on the defendant in being made to pay money into Court, I should be prepared to accept that there has been a tendency in the last few years to use this condition more often than it has been used in the past, and I think that that is a good tendency;" These observations as well as some observations of Chagla, C.J., in Rawalpindi Theatres Private Ltd. v. M/s. Film Group Bombay, 60 Bom LR 1378 at p. 1374, may well be borne in mind by the Court sitting in appeal upon the order of the trial Judge granting conditional leave to defend. It is indeed not easy to say in many cases whether the defence is a genuine one or not and, therfore, it should be left to the discretion of the trial Judge who has experience of such matters both at the bar and the bench to form his own tentative conclusion about the quality or nature of the defence and determine the conditions upon which leave to defend may be granted. If the Judge is of opinion that the case raises a triable issue, then leave should ordinarily be granted unconditionally. On the other hand, if he is of opinion that the defence raised is frivolous, or false, or sham, he should refuse leave to defend altogether. Unfortunately however, the majority of cases cannot be dealt with in a clear cut way like this and the judge may entertain a genuine doubt on the question as to whether the defence is genuine or sham or in other words whether it raises a triable issue or not. It is to meet such cases that the amendment to O. 37, R. 2 made by the Bombay High Court contemplates that even in cases where an apparently triable issue is raised the Judge may impose conditions in granting leave to defend. Thus this is a matter in the discretion of the trial Judge and in dealing with it, he ought to exercise his discretion judiciously. Care must be taken to see that the object of the rule to assist the expeditious disposal of commercial causes to which the order applies is not defeated. Care must also be taken to see that real and genuine triable issues are not shut out by unduly severe orders as to deposit. In a matter of this kind, it would be undesirable and inexpedient to lay down any rule of general application. | 0[ds]On the basis of these averments in the plaint the appellants contend that the only claim which the respondents had or could have against them is on the basis of the agreement that that claim would be for an unliquidated amount and that consequently the suit could not be brought under O. 37, Rr. 2 and 3 of the Code. It seems to us, however, to be clear from the perusal of the plaint as well as the affidavits of the appellants that the cause of action for respondents claim as laid in the suit is prima facie independent of the aforesaido doubt they advanced the money by way of financing the export business of the company but the right to repayment was absolute and unconditional. This is made clear by the subsequent agreement executed by the appellants 2 to 4. No doubt the respondents contend that they are also entitled to recover damages from the appellants under the agreement but according to them this claim is in addition to and not in substitution of that based upon the promissory notes and the indenture of guaranteeWithout expressing any view as to the correctness of the decision it is sufficient to say that what the High Court was dealing with there was a suit in which upon the same facts the plaintiff was, according to the High Court, not only entitled to sue but bound to seek two reliefs but sued only for one of them. In the case before us the reliefs claimed in the suit are distinct from the relief claimable on the basis of the agreement between partiesThe short answer to the question is that the respondent did make an application to the Court under O. 2, R. 2,, C.P.C., for leave to reserve their claim under the agreement for being adjudicated in another suit. The Court granted leave to them and, therefore, no further question arises. Moreover what we are concerned with is the claim made by the respondents in the present suit. Here they have sought relief only on the basis of the promissory notes and the indenture of guarantee. Even assuming that they were also entitled to other relief on the same cause of action it was certainly open to them even to relinquish their claims for other reliefs. The mere fact that they did so to avail themselves of the summary procedure provided in O. 37, could not affect their suit adversely. However, in this case the respondents obtained leave to reserve their claim based upon the agreement before they took out summons against the appellants under O. 37, R. 2,subr.2. That order was not challenged by the appellants and has become final between the parties so far as the present suit is concernedThat case is however distinguishable. There what was challenged was the order of the City Civil Court which granted leave to the defendant to defend that suit for recovery of a sum of Rs. 18725/upon the condition of depositing Rs. 7500/as security. It was urged before the High Court that where a subordinate court makes an order which is open to appeal or revision it should give some reasons in support of that order. No reasons having been given the order was set aside and the matter was remitted to the City Civil Court for passing a fresh order in accordance with law. While laying down the normal rule it does not appear to have been intended to make it inflexible. Nor again it appears to have been contemplated that elaborate reasons to support the imposition of conditions must be given. In the case before us the order made is by the High Court itself and not by the subordinate court. No doubt an appeal lay against it under the Letters Patent but that is merely an internal appeal in a High Court, which cannot be likened to an appeal under S. 96 or a revision application under S. 115 of the Code. Moreover O. 49, R. 3) provides that nothing contained in Rr. 1 to 8 of O. 20 will apply to any Chartered High Court in exercise of its ordinary or extraordinary civil jurisdiction. The provision relating to the giving of reasons in support of a decision are to be found in R. 4 of O. 20. Since these provisions do not apply to Chartered High Courts, like the High Court at Bombay the decision relied upon cannot be pressed in aidIt is indeed not easy to say in many cases whether the defence is a genuine one or not and, therfore, it should be left to the discretion of the trial Judge who has experience of such matters both at the bar and the bench to form his own tentative conclusion about the quality or nature of the defence and determine the conditions upon which leave to defend may be granted. If the Judge is of opinion that the case raises a triable issue, then leave should ordinarily be granted unconditionally. On the other hand, if he is of opinion that the defence raised is frivolous, or false, or sham, he should refuse leave to defend altogether. Unfortunately however, the majority of cases cannot be dealt with in a clear cut way like this and the judge may entertain a genuine doubt on the question as to whether the defence is genuine or sham or in other words whether it raises a triable issue or not. It is to meet such cases that the amendment to O. 37, R. 2 made by the Bombay High Court contemplates that even in cases where an apparently triable issue is raised the Judge may impose conditions in granting leave to defend. Thus this is a matter in the discretion of the trial Judge and in dealing with it, he ought to exercise his discretion judiciously. Care must be taken to see that the object of the rule to assist the expeditious disposal of commercial causes to which the order applies is not defeated. Care must also be taken to see that real and genuine triable issues are not shut out by unduly severe orders as to deposit. In a matter of this kind, it would be undesirable and inexpedient to lay down any rule of general application. | 0 | 4,204 | 1,126 | ### Instruction:
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make it impossible to give effect to the provisions of O. 37 which have been enacted, as rightly pointed out by Bose, J. to ensure speedy decisions in cases of certain types. It will be seen that O. 37, R. 2 is applicable to what may be compendiously described as commercial causes. Trading and commercial operations are liable to be seriously impeded if, in particular, money disputes between the parties are not adjudicated upon expeditiously. It is these considerations which have to be borne in mind for the purpose of deciding whether leave to defend should be given or withheld and if given should be subjected to a condition. 6. It may be mentioned that this Court relied upon the decision in Jacobs v. Booths Distillery Co. (1901) 85 LT 262, in which the House of Lords held that whenever a defence raises a triable issue leave must. be given and also referred to two subsequent decisions where it was held that when such is the case leave must be given unconditionally. In this connection we may refer to the following observations of Devlin, L. J. in Fieldrank Ltd. v. Stein (1961) 3 All ER 681 at pp. 682-3. "The broad principle, which is founded on (1901) 85 LT 262, is summarised on p. 266 of the Annual Practice (1962 Edn.) in the following terms : "The principle on which the Court acts is that where the defendant can show by affidavit that there is a bona fide triable issue, he is to be allowed to defend as to that issue without condition." If that principle were mandatory, then the concession by counsel for the plaintiffs that there is here a triable issue would mean at once that the appeal ought to be allowed; but counsel for the plaintiffs has drawn our attention to some comments that have been made on (1901) 85 LT 262. They will be found at pp. 251 and 267 of the Annual Practice, 1962. It is suggested (see p. 251) that possibly the case if it is closely examined, does not go as far as it has hitherto been thought to go; and on the top of p. 267 the learned editors of the Annual Practice have this note: "The condition of payment into Court, or giving security, is nowadays more often imposed than formerly, and not only where the defendant consents but also where there is a good ground in the evidence for believing that the defence set up is a sham defence and the master is prepared very nearly to give judgment for the plaintiff." It is worth noting also that in Lloyds Banking Co. v. Ogle (1876) 1 Ex. D. 262, at p. 264 in a dictum which was said to have been overruled or qualified by (1901) 85 LT 262, Bramwell, B., had said that ". . . . . . . . . . . those conditions (of bringing money into Court or giving security) should only be applied when there is something suspicious in the defendants mode of presenting his case." I should be very glad to see some relaxation of the strict rule in (1901) 85 LT 262. I think that any Judge who has sat in chambers in R.S.C., Ord. 14 summonses has had the experience of a case in which, although he cannot say for certain that there is not a triable issue, nevertheless he is left with a real doubt about the defendants good faith, and would like to protect the plaintiff, especially if there is not grave hardship on the defendant in being made to pay money into Court, I should be prepared to accept that there has been a tendency in the last few years to use this condition more often than it has been used in the past, and I think that that is a good tendency;" These observations as well as some observations of Chagla, C.J., in Rawalpindi Theatres Private Ltd. v. M/s. Film Group Bombay, 60 Bom LR 1378 at p. 1374, may well be borne in mind by the Court sitting in appeal upon the order of the trial Judge granting conditional leave to defend. It is indeed not easy to say in many cases whether the defence is a genuine one or not and, therfore, it should be left to the discretion of the trial Judge who has experience of such matters both at the bar and the bench to form his own tentative conclusion about the quality or nature of the defence and determine the conditions upon which leave to defend may be granted. If the Judge is of opinion that the case raises a triable issue, then leave should ordinarily be granted unconditionally. On the other hand, if he is of opinion that the defence raised is frivolous, or false, or sham, he should refuse leave to defend altogether. Unfortunately however, the majority of cases cannot be dealt with in a clear cut way like this and the judge may entertain a genuine doubt on the question as to whether the defence is genuine or sham or in other words whether it raises a triable issue or not. It is to meet such cases that the amendment to O. 37, R. 2 made by the Bombay High Court contemplates that even in cases where an apparently triable issue is raised the Judge may impose conditions in granting leave to defend. Thus this is a matter in the discretion of the trial Judge and in dealing with it, he ought to exercise his discretion judiciously. Care must be taken to see that the object of the rule to assist the expeditious disposal of commercial causes to which the order applies is not defeated. Care must also be taken to see that real and genuine triable issues are not shut out by unduly severe orders as to deposit. In a matter of this kind, it would be undesirable and inexpedient to lay down any rule of general application.
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could not be brought under O. 37, Rr. 2 and 3 of the Code. It seems to us, however, to be clear from the perusal of the plaint as well as the affidavits of the appellants that the cause of action for respondents claim as laid in the suit is prima facie independent of the aforesaido doubt they advanced the money by way of financing the export business of the company but the right to repayment was absolute and unconditional. This is made clear by the subsequent agreement executed by the appellants 2 to 4. No doubt the respondents contend that they are also entitled to recover damages from the appellants under the agreement but according to them this claim is in addition to and not in substitution of that based upon the promissory notes and the indenture of guaranteeWithout expressing any view as to the correctness of the decision it is sufficient to say that what the High Court was dealing with there was a suit in which upon the same facts the plaintiff was, according to the High Court, not only entitled to sue but bound to seek two reliefs but sued only for one of them. In the case before us the reliefs claimed in the suit are distinct from the relief claimable on the basis of the agreement between partiesThe short answer to the question is that the respondent did make an application to the Court under O. 2, R. 2,, C.P.C., for leave to reserve their claim under the agreement for being adjudicated in another suit. The Court granted leave to them and, therefore, no further question arises. Moreover what we are concerned with is the claim made by the respondents in the present suit. Here they have sought relief only on the basis of the promissory notes and the indenture of guarantee. Even assuming that they were also entitled to other relief on the same cause of action it was certainly open to them even to relinquish their claims for other reliefs. The mere fact that they did so to avail themselves of the summary procedure provided in O. 37, could not affect their suit adversely. However, in this case the respondents obtained leave to reserve their claim based upon the agreement before they took out summons against the appellants under O. 37, R. 2,subr.2. That order was not challenged by the appellants and has become final between the parties so far as the present suit is concernedThat case is however distinguishable. There what was challenged was the order of the City Civil Court which granted leave to the defendant to defend that suit for recovery of a sum of Rs. 18725/upon the condition of depositing Rs. 7500/as security. It was urged before the High Court that where a subordinate court makes an order which is open to appeal or revision it should give some reasons in support of that order. No reasons having been given the order was set aside and the matter was remitted to the City Civil Court for passing a fresh order in accordance with law. While laying down the normal rule it does not appear to have been intended to make it inflexible. Nor again it appears to have been contemplated that elaborate reasons to support the imposition of conditions must be given. In the case before us the order made is by the High Court itself and not by the subordinate court. No doubt an appeal lay against it under the Letters Patent but that is merely an internal appeal in a High Court, which cannot be likened to an appeal under S. 96 or a revision application under S. 115 of the Code. Moreover O. 49, R. 3) provides that nothing contained in Rr. 1 to 8 of O. 20 will apply to any Chartered High Court in exercise of its ordinary or extraordinary civil jurisdiction. The provision relating to the giving of reasons in support of a decision are to be found in R. 4 of O. 20. Since these provisions do not apply to Chartered High Courts, like the High Court at Bombay the decision relied upon cannot be pressed in aidIt is indeed not easy to say in many cases whether the defence is a genuine one or not and, therfore, it should be left to the discretion of the trial Judge who has experience of such matters both at the bar and the bench to form his own tentative conclusion about the quality or nature of the defence and determine the conditions upon which leave to defend may be granted. If the Judge is of opinion that the case raises a triable issue, then leave should ordinarily be granted unconditionally. On the other hand, if he is of opinion that the defence raised is frivolous, or false, or sham, he should refuse leave to defend altogether. Unfortunately however, the majority of cases cannot be dealt with in a clear cut way like this and the judge may entertain a genuine doubt on the question as to whether the defence is genuine or sham or in other words whether it raises a triable issue or not. It is to meet such cases that the amendment to O. 37, R. 2 made by the Bombay High Court contemplates that even in cases where an apparently triable issue is raised the Judge may impose conditions in granting leave to defend. Thus this is a matter in the discretion of the trial Judge and in dealing with it, he ought to exercise his discretion judiciously. Care must be taken to see that the object of the rule to assist the expeditious disposal of commercial causes to which the order applies is not defeated. Care must also be taken to see that real and genuine triable issues are not shut out by unduly severe orders as to deposit. In a matter of this kind, it would be undesirable and inexpedient to lay down any rule of general application.
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Jugal Kishore Rameshwardas Vs. Mrs. Goolbai Hormusji | accordingly competent, and that the award made there, in is not open to objection on the ground that Ex. A is void.8. It was next contended for the respondent that the contract notes were void under R. 167 of the Native Share and Stock Brokers" Association, and that on that ground also, the arbitration proceedings and the award were void. Rule 167 so far as it is material is as follows:"167. (a) Members shall render contract notes to non-Members in respect of every bargain made for such non-Members account, stating the price at which the bargain has been made. Such contract notes shall contain a charge for brokerage at rates not less than the scale prescribed in Appendix G annexed to these Rules, or as modified by the provisions of Rr. 168 and 170(b). Such contract notes shall show brokerage separately and shall be in Form A prescribed in Appendix H annexed to these Rules.. . . . . . ... .... . ... .. .. . . .(c) No contract note not in one of the printed Forms in Appendix H shall be deemed to be valid.. . . . . . . . . . . . . . . . . .(g) A contract note referred to in this rule or any other rule for the time being in force shall be deemed to mean and include a contract and shall have the same significance as a contract".Form A in Appendix H referred to in R. 167 (a) contains two columns, one showing the rate at which the securities are purchased or sold and the other, the brokerage. The contract notes sent to the respondent are not in this form. They are in Accordance with Form A in Appendix A, and show the rates at which the securities are sold or purchased, the brokerage not being separately shown. At the foot of the document, there is the following note :"This is net contract. Brokerage is included in the price".The contention of the respondent is that the contract notes are not in accordance with Form A in Appendix H, as the price and brokerage are not separately shown, and that therefore they are void under R. 167 (c). Now, R. 167 applies only to forward contracts, and the basis of the contention of the respondent is that inasmuch as the contract notes, Ext. A, have been held by the learned Judges of the High Court not to be ready, delivery contracts but forward contracts, they would be void under R. 167,(c), even if they were not hit by S. 6 of Act 8 of 1925.The assumption underlying this argument is that what is not a ready delivery contract under the definition in S. 3 (4) of Act 8 of 1925 must necessarily be a forward contract for purposes of R. 167. But that is not correct. The definition of a ready delivery contract in S. 3 (4) is only for the purpose of the Act, and will apply only when the question is whether the contract is void under S. 6 of that Act. But when the question is whether the contract is void under R. 167, what has to be seen is whether it is a forward contract as defined or contemplated by the Rules.The definition in S. 3 (4) of Act 8 of 1925 would be wholly irrelevant for determining whether the contract is a forward contract for purposes of R. 167, the decision of which question must depend entirely on the construction of the Rules.9. The relevant Rules are Nos. 359 to 363. Rule 359 provides that "contracts other than ready delivery contracts shall not be made or transacted within or without the ring." Rule 361 confers on the Board power to specify which securities shall be settled by the system of Clearance Sheets and which, by the process of Tickets. Rules 362 and 363 prescribe the modus operandi to be followed in effecting the settlement. It was with reference to these rules which under the contract notes were to be read as part of the contract, that the learned Judges held that the contracts were not ready delivery contract as defined in S. 3 (4) of Act 8 of 1925.But reading the above Rules with R. 359, there can be no doubt that the contract notes, Ex. A, would for the purpose of the Rules be ready delivery contracts. Indeed, the from of the contract notes , Ex. A, is the one provided under the Rules for ready delivery contracts, whereas Form A in Appendix H is, as already stated, for forward contracts.Thus, contracts which are regulated by Rr. 359 to 363 cannot be forward contracts contemplated by R.167, and they cannot be held to be void under that Rule.The error in the argument of the respondent is in mixing up two different provisions enacted by two different authorities and reading the one into the other. The Rules framed by the Association form a code complete in itself, and any question arising with reference to those Rules must be determined on their construction, and it would be a mistake to read into them the statutory provisions enacted in Act 8 of 1925.In this view, the contract notes, Ex. A, cannot be held to be void under R. 167.In the result, we must held, differing from the learned Judges of the Court below, that the arbitration proceedings are not incompetent and that the award made therein is not void on the ground that the contracts containing the agreement are void.10. The respondent contested the validity of the award on several other grounds.They were rejected by the City Civil Judge and in the view taken by the learned Judges of the High Court that the contract notes were void under S. 6 of Act 8 of 1925, they did not deal with them. Now that we have held that the contracts are not void, it is necessary that the appeal should be heard on those points. | 1[ds]we are of opinion that the point is open to the appellant, and having heard counsel on both sides, we think that the appeal should succeed on thatquestion of sale or purchase would arise between the respondent and the seller or purchaser, as the case may be, with reference to the contract brought about by the appellant. But the relationship between the respondent and the appellant was one of principal and agent and not that of seller and purchaser.The contract of employment is no doubt connected, and intimately, with sales and purchases of securities; but it is not itself a contract of sale or purchase. It is collateral to it, and does not become ipso facto void, even if the contract of purchase and sale with which it is connected is void.It may be argued that if the contract note is only, intimation of a sale or purchase on behalf of the constituent, then it is not a contract of employment, and that in consequence, there is no agreement in writing for arbitration as required by the Arbitration Act.But it is settled law that to constitute an arbitration agreement in writing it is not necessary that it should be signed by the parties, and that it is sufficient if the terms are reduced to writing and the agreement of the parties thereto is established.Though the respondent alleged in her petition that she had not accepted the contract notes, Ex. A, she raised no contention based thereon either before the City Civil Judge or before the High Court, and even in this Court the position taken up by her counsel was that Ex. A constituted the sole repository of the contracts, and as they were void, there was no arbitration clause in force between the parties.We accordingly hold that the contract notes contained an agreement in writing to refer disputes arising out of the employment of the appellant as broker to arbitration, and that they fell outside the scope of S. 6 of Act 8 of 1925 that the arbitration proceedings are accordingly competent, and that the award made there, in is not open to objection on the ground that Ex. A iserror in the argument of the respondent is in mixing up two different provisions enacted by two different authorities and reading the one into the other. The Rules framed by the Association form a code complete in itself, and any question arising with reference to those Rules must be determined on their construction, and it would be a mistake to read into them the statutory provisions enacted in Act 8 of 1925.In this view, the contract notes, Ex. A, cannot be held to be void under R. 167.In the result, we must held, differing from the learned Judges of the Court below, that the arbitration proceedings are not incompetent and that the award made therein is not void on the ground that the contracts containing the agreement are void.10. The respondent contested the validity of the award on several other grounds.They were rejected by the City Civil Judge and in the view taken by the learned Judges of the High Court that the contract notes were void under S. 6 of Act 8 of 1925, they did not deal with them. Now that we have held that the contracts are not void, it is necessary that the appeal should be heard on those points. | 1 | 2,972 | 612 | ### 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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accordingly competent, and that the award made there, in is not open to objection on the ground that Ex. A is void.8. It was next contended for the respondent that the contract notes were void under R. 167 of the Native Share and Stock Brokers" Association, and that on that ground also, the arbitration proceedings and the award were void. Rule 167 so far as it is material is as follows:"167. (a) Members shall render contract notes to non-Members in respect of every bargain made for such non-Members account, stating the price at which the bargain has been made. Such contract notes shall contain a charge for brokerage at rates not less than the scale prescribed in Appendix G annexed to these Rules, or as modified by the provisions of Rr. 168 and 170(b). Such contract notes shall show brokerage separately and shall be in Form A prescribed in Appendix H annexed to these Rules.. . . . . . ... .... . ... .. .. . . .(c) No contract note not in one of the printed Forms in Appendix H shall be deemed to be valid.. . . . . . . . . . . . . . . . . .(g) A contract note referred to in this rule or any other rule for the time being in force shall be deemed to mean and include a contract and shall have the same significance as a contract".Form A in Appendix H referred to in R. 167 (a) contains two columns, one showing the rate at which the securities are purchased or sold and the other, the brokerage. The contract notes sent to the respondent are not in this form. They are in Accordance with Form A in Appendix A, and show the rates at which the securities are sold or purchased, the brokerage not being separately shown. At the foot of the document, there is the following note :"This is net contract. Brokerage is included in the price".The contention of the respondent is that the contract notes are not in accordance with Form A in Appendix H, as the price and brokerage are not separately shown, and that therefore they are void under R. 167 (c). Now, R. 167 applies only to forward contracts, and the basis of the contention of the respondent is that inasmuch as the contract notes, Ext. A, have been held by the learned Judges of the High Court not to be ready, delivery contracts but forward contracts, they would be void under R. 167,(c), even if they were not hit by S. 6 of Act 8 of 1925.The assumption underlying this argument is that what is not a ready delivery contract under the definition in S. 3 (4) of Act 8 of 1925 must necessarily be a forward contract for purposes of R. 167. But that is not correct. The definition of a ready delivery contract in S. 3 (4) is only for the purpose of the Act, and will apply only when the question is whether the contract is void under S. 6 of that Act. But when the question is whether the contract is void under R. 167, what has to be seen is whether it is a forward contract as defined or contemplated by the Rules.The definition in S. 3 (4) of Act 8 of 1925 would be wholly irrelevant for determining whether the contract is a forward contract for purposes of R. 167, the decision of which question must depend entirely on the construction of the Rules.9. The relevant Rules are Nos. 359 to 363. Rule 359 provides that "contracts other than ready delivery contracts shall not be made or transacted within or without the ring." Rule 361 confers on the Board power to specify which securities shall be settled by the system of Clearance Sheets and which, by the process of Tickets. Rules 362 and 363 prescribe the modus operandi to be followed in effecting the settlement. It was with reference to these rules which under the contract notes were to be read as part of the contract, that the learned Judges held that the contracts were not ready delivery contract as defined in S. 3 (4) of Act 8 of 1925.But reading the above Rules with R. 359, there can be no doubt that the contract notes, Ex. A, would for the purpose of the Rules be ready delivery contracts. Indeed, the from of the contract notes , Ex. A, is the one provided under the Rules for ready delivery contracts, whereas Form A in Appendix H is, as already stated, for forward contracts.Thus, contracts which are regulated by Rr. 359 to 363 cannot be forward contracts contemplated by R.167, and they cannot be held to be void under that Rule.The error in the argument of the respondent is in mixing up two different provisions enacted by two different authorities and reading the one into the other. The Rules framed by the Association form a code complete in itself, and any question arising with reference to those Rules must be determined on their construction, and it would be a mistake to read into them the statutory provisions enacted in Act 8 of 1925.In this view, the contract notes, Ex. A, cannot be held to be void under R. 167.In the result, we must held, differing from the learned Judges of the Court below, that the arbitration proceedings are not incompetent and that the award made therein is not void on the ground that the contracts containing the agreement are void.10. The respondent contested the validity of the award on several other grounds.They were rejected by the City Civil Judge and in the view taken by the learned Judges of the High Court that the contract notes were void under S. 6 of Act 8 of 1925, they did not deal with them. Now that we have held that the contracts are not void, it is necessary that the appeal should be heard on those points.
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1
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we are of opinion that the point is open to the appellant, and having heard counsel on both sides, we think that the appeal should succeed on thatquestion of sale or purchase would arise between the respondent and the seller or purchaser, as the case may be, with reference to the contract brought about by the appellant. But the relationship between the respondent and the appellant was one of principal and agent and not that of seller and purchaser.The contract of employment is no doubt connected, and intimately, with sales and purchases of securities; but it is not itself a contract of sale or purchase. It is collateral to it, and does not become ipso facto void, even if the contract of purchase and sale with which it is connected is void.It may be argued that if the contract note is only, intimation of a sale or purchase on behalf of the constituent, then it is not a contract of employment, and that in consequence, there is no agreement in writing for arbitration as required by the Arbitration Act.But it is settled law that to constitute an arbitration agreement in writing it is not necessary that it should be signed by the parties, and that it is sufficient if the terms are reduced to writing and the agreement of the parties thereto is established.Though the respondent alleged in her petition that she had not accepted the contract notes, Ex. A, she raised no contention based thereon either before the City Civil Judge or before the High Court, and even in this Court the position taken up by her counsel was that Ex. A constituted the sole repository of the contracts, and as they were void, there was no arbitration clause in force between the parties.We accordingly hold that the contract notes contained an agreement in writing to refer disputes arising out of the employment of the appellant as broker to arbitration, and that they fell outside the scope of S. 6 of Act 8 of 1925 that the arbitration proceedings are accordingly competent, and that the award made there, in is not open to objection on the ground that Ex. A iserror in the argument of the respondent is in mixing up two different provisions enacted by two different authorities and reading the one into the other. The Rules framed by the Association form a code complete in itself, and any question arising with reference to those Rules must be determined on their construction, and it would be a mistake to read into them the statutory provisions enacted in Act 8 of 1925.In this view, the contract notes, Ex. A, cannot be held to be void under R. 167.In the result, we must held, differing from the learned Judges of the Court below, that the arbitration proceedings are not incompetent and that the award made therein is not void on the ground that the contracts containing the agreement are void.10. The respondent contested the validity of the award on several other grounds.They were rejected by the City Civil Judge and in the view taken by the learned Judges of the High Court that the contract notes were void under S. 6 of Act 8 of 1925, they did not deal with them. Now that we have held that the contracts are not void, it is necessary that the appeal should be heard on those points.
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Smt. Rumi Dhar Vs. State of West Bengal & Another | careful consideration to the facts and circumstances of the case and the submissions made by the respective counsel for the parties, it appears to us that for the purpose of quashing the complaint, it is necessary to consider whether the allegations in the complaint prima facie make out an offence or not. It is not necessary to scrutinize the allegations for the purpose of deciding whether such allegations are likely to be upheld in the trial. Any action by way of quashing the complaint is an action to be taken at the threshold before evidences are led in support of the complaint. For quashing the complaint by way of action at the threshold, it is, therefore, necessary to consider whether on the face of the allegations, a criminal offence is constituted or not. In recent decisions of this Court, in the case of Bhajan Lal (supra), P.P. Sharma (supra) and Janta Dal (supra), since relied on by Mr. Tulsi, the guiding principles in quashing a criminal case have been indicated." It was furthermore observed: "27. In the instant case, a serious dispute has been raised by the learned Counsel appearing for the respective party as to whether on the face of the allegations, an offence of criminal breach of trust is constituted or not. In our view, the expression entrusted with property or with any dominion over property has been used in a wide sense in Section 405 I.P.C. Such expression includes all cases in which goods are entrusted, that is, voluntarily handed over for a specific purpose and dishonestly disposed of in violation of law or in violation of contract. The expression entrusted appearing in Section 405 I.P.C. is not necessarily a term of law. It has wide and different implications in different contexts. It is, however, necessary that the ownership or beneficial interest in the ownership of the property entrusted in respect of which offence is alleged to have been committed must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit. The expression trust in Section 405 I.P.C. is a comprehensive expression and has been used to denote various kinds of relationship like the relationship of trustee and beneficiary, bailor and bailee, master and servant, pledger and pledgee. When some goods arc hypothecated by a person to another person, the ownership of the goods still remains with the person who has hypothecated such goods. The property in respect of which criminal breach of trust can be committed must necessarily be the property of some person other than the accused or the beneficial interest in or ownership of it must be in other person and the offender must hold such property in trust for such other person or for his benefit. In a case of pledge, the pledged article belongs to some other person but the same is kept in trust by the pledgee. In the instant case, a floating charge was made on the goods by way of security to cover up credit facility. In our view, in such case for disposing of the goods covering the security against credit facility the offence of criminal breach of trust is not committed. In the facts and circumstances of the case, it, however, appears to us that the Respondents moved the High Court only in 1991 although the first FIR was filed in 1987 and the second was filed in 1989. The CBI, therefore, got sufficient time to complete the investigation for the purpose of framing the charge." This is also not a case where unlike Duncans Agro Industries, no case of criminal breach of trust had been made out. Our attention has also been drawn to a recent decision of this Court in Nikhil Merchant v. Central Bureau of Investigation & Anr. [(2008) 9 SCC 677] , wherein this Court refused to refer the matter to a larger Bench, stating: "30. In the instant case, the disputes between the Company and the Bank have been set at rest on the basis of the compromise arrived at by them whereunder the dues of the Bank have been cleared and the Bank does not appear to have any further claim against the Company. What, however, remains is the fact that certain documents were alleged to have been created by the appellant herein in order to avail of credit facilities beyond the limit to which the Company was entitled. The dispute involved herein has overtones of a civil dispute with certain criminal facets. The question which is required to be answered in this case is whether the power which independently lies with this Court to quash the criminal proceedings pursuant to the compromise arrived at, should at all be exercised?31. On an overall view of the facts as indicated hereinabove and keeping in mind the decision of this Court in B.S. Joshis case (supra) and the compromise arrived at between the Company and the Bank as also Clause 11 of the consent terms filed in the suit filed by the Bank, we are satisfied that this is a fit case where technicality should not be allowed to stand in the way in the quashing of the criminal proceedings, since, in our view, the continuance of the same after the compromise arrived at between the parties would be a futile exercise." 23. The jurisdiction of the Court under Article 142 of the Constitution of India is not in dispute. Exercise of such power would, however, depend on the facts and circumstance of each case. The High Court, in exercise of its jurisdiction under Section 482 of the Code of Criminal procedure, and this Court, in terms of Article 142 of the Constitution of India, would not direct quashing of a case involving crime against the society particularly when both the learned Special Judge as also the High Court have found that a prima facie case has been made out against the appellant herein for framing charge. | 0[ds]17. Appellant is said to have taken part in conspiracy in defrauding the bank. Serious charges of falsification of accounts and forgery of records have also been alleged. Although no charge against the appellant under the Prevention of Corruption Act has been framed, indisputably, the officers of the bank are facing the said charges.18. It is now a well settled principle of law that in a given case, a civil proceeding and a criminal proceeding can proceed simultaneously. Bank is entitled to recover the amount of loan given to the debtor. If in connection with obtaining the said loan, criminal offences have been committed by the persons accused thereof including the officers of the bank, criminal proceedings would also indisputably be maintainable. When a settlement is arrived at by and between the creditor and the debtor, the offence committed as such does not come to an end. The judgment of a tribunal in a civil proceeding and that too when it is rendered on the basis of settlement entered into by and between the parties, would not be of much relevance in a criminal proceeding having regard to the provisions contained in Section 43 of the Indian Evidence Act.19. The judgment in the civil proceedings will be admissibile in evidence only for a limited purpose. It is not a case where the parties have entered into a compromise in relation to the criminal charges. In fact, the offence alleged against the accused being an offence against the society and the allegations contained in the first information report having been investigated by the Central Bureau of Investigation, the bank could not have entered into any settlement at all. The CBI has not filed any application for withdrawal of the case. Not only a charge sheet has been filed, charges have also been framed. At the stage of framing charge, the appellant filed an application for discharge. One of the main accused is the husband of the appellant. The complicity of the accused persons was, thus, required to be taken into consideration for the purpose of determining the application for discharge upon taking a realistic view of the matter. While considering an application for discharge filed in terms of Section 239 of the Code, it was for the learned Judge to go into the details of the allegations made against each of the accused persons so as to form an opinion as to whether any case at all has been made out or not as a strong suspicion in regard thereto shall subserve the requirements of law.It has not been argued before us that the learned Judge, in arriving at the said opinion, committed any error of law or the same otherwise suffers from any illegality so as to enable the High Court to interfere with the same matter. A prima facie case has been found out against the appellant. There is no error apparent on the face of the record warranting interference therewith.The jurisdiction of the Court under Article 142 of the Constitution of India is not in dispute. Exercise of such power would, however, depend on the facts and circumstance of each case. The High Court, in exercise of its jurisdiction under Section 482 of the Code of Criminal procedure, and this Court, in terms of Article 142 of the Constitution of India, would not direct quashing of a case involving crime against the society particularly when both the learned Special Judge as also the High Court have found that a prima facie case has been made out against the appellant herein for framing charge. | 0 | 3,451 | 643 | ### 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:
careful consideration to the facts and circumstances of the case and the submissions made by the respective counsel for the parties, it appears to us that for the purpose of quashing the complaint, it is necessary to consider whether the allegations in the complaint prima facie make out an offence or not. It is not necessary to scrutinize the allegations for the purpose of deciding whether such allegations are likely to be upheld in the trial. Any action by way of quashing the complaint is an action to be taken at the threshold before evidences are led in support of the complaint. For quashing the complaint by way of action at the threshold, it is, therefore, necessary to consider whether on the face of the allegations, a criminal offence is constituted or not. In recent decisions of this Court, in the case of Bhajan Lal (supra), P.P. Sharma (supra) and Janta Dal (supra), since relied on by Mr. Tulsi, the guiding principles in quashing a criminal case have been indicated." It was furthermore observed: "27. In the instant case, a serious dispute has been raised by the learned Counsel appearing for the respective party as to whether on the face of the allegations, an offence of criminal breach of trust is constituted or not. In our view, the expression entrusted with property or with any dominion over property has been used in a wide sense in Section 405 I.P.C. Such expression includes all cases in which goods are entrusted, that is, voluntarily handed over for a specific purpose and dishonestly disposed of in violation of law or in violation of contract. The expression entrusted appearing in Section 405 I.P.C. is not necessarily a term of law. It has wide and different implications in different contexts. It is, however, necessary that the ownership or beneficial interest in the ownership of the property entrusted in respect of which offence is alleged to have been committed must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit. The expression trust in Section 405 I.P.C. is a comprehensive expression and has been used to denote various kinds of relationship like the relationship of trustee and beneficiary, bailor and bailee, master and servant, pledger and pledgee. When some goods arc hypothecated by a person to another person, the ownership of the goods still remains with the person who has hypothecated such goods. The property in respect of which criminal breach of trust can be committed must necessarily be the property of some person other than the accused or the beneficial interest in or ownership of it must be in other person and the offender must hold such property in trust for such other person or for his benefit. In a case of pledge, the pledged article belongs to some other person but the same is kept in trust by the pledgee. In the instant case, a floating charge was made on the goods by way of security to cover up credit facility. In our view, in such case for disposing of the goods covering the security against credit facility the offence of criminal breach of trust is not committed. In the facts and circumstances of the case, it, however, appears to us that the Respondents moved the High Court only in 1991 although the first FIR was filed in 1987 and the second was filed in 1989. The CBI, therefore, got sufficient time to complete the investigation for the purpose of framing the charge." This is also not a case where unlike Duncans Agro Industries, no case of criminal breach of trust had been made out. Our attention has also been drawn to a recent decision of this Court in Nikhil Merchant v. Central Bureau of Investigation & Anr. [(2008) 9 SCC 677] , wherein this Court refused to refer the matter to a larger Bench, stating: "30. In the instant case, the disputes between the Company and the Bank have been set at rest on the basis of the compromise arrived at by them whereunder the dues of the Bank have been cleared and the Bank does not appear to have any further claim against the Company. What, however, remains is the fact that certain documents were alleged to have been created by the appellant herein in order to avail of credit facilities beyond the limit to which the Company was entitled. The dispute involved herein has overtones of a civil dispute with certain criminal facets. The question which is required to be answered in this case is whether the power which independently lies with this Court to quash the criminal proceedings pursuant to the compromise arrived at, should at all be exercised?31. On an overall view of the facts as indicated hereinabove and keeping in mind the decision of this Court in B.S. Joshis case (supra) and the compromise arrived at between the Company and the Bank as also Clause 11 of the consent terms filed in the suit filed by the Bank, we are satisfied that this is a fit case where technicality should not be allowed to stand in the way in the quashing of the criminal proceedings, since, in our view, the continuance of the same after the compromise arrived at between the parties would be a futile exercise." 23. The jurisdiction of the Court under Article 142 of the Constitution of India is not in dispute. Exercise of such power would, however, depend on the facts and circumstance of each case. The High Court, in exercise of its jurisdiction under Section 482 of the Code of Criminal procedure, and this Court, in terms of Article 142 of the Constitution of India, would not direct quashing of a case involving crime against the society particularly when both the learned Special Judge as also the High Court have found that a prima facie case has been made out against the appellant herein for framing charge.
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0
### Explanation:
17. Appellant is said to have taken part in conspiracy in defrauding the bank. Serious charges of falsification of accounts and forgery of records have also been alleged. Although no charge against the appellant under the Prevention of Corruption Act has been framed, indisputably, the officers of the bank are facing the said charges.18. It is now a well settled principle of law that in a given case, a civil proceeding and a criminal proceeding can proceed simultaneously. Bank is entitled to recover the amount of loan given to the debtor. If in connection with obtaining the said loan, criminal offences have been committed by the persons accused thereof including the officers of the bank, criminal proceedings would also indisputably be maintainable. When a settlement is arrived at by and between the creditor and the debtor, the offence committed as such does not come to an end. The judgment of a tribunal in a civil proceeding and that too when it is rendered on the basis of settlement entered into by and between the parties, would not be of much relevance in a criminal proceeding having regard to the provisions contained in Section 43 of the Indian Evidence Act.19. The judgment in the civil proceedings will be admissibile in evidence only for a limited purpose. It is not a case where the parties have entered into a compromise in relation to the criminal charges. In fact, the offence alleged against the accused being an offence against the society and the allegations contained in the first information report having been investigated by the Central Bureau of Investigation, the bank could not have entered into any settlement at all. The CBI has not filed any application for withdrawal of the case. Not only a charge sheet has been filed, charges have also been framed. At the stage of framing charge, the appellant filed an application for discharge. One of the main accused is the husband of the appellant. The complicity of the accused persons was, thus, required to be taken into consideration for the purpose of determining the application for discharge upon taking a realistic view of the matter. While considering an application for discharge filed in terms of Section 239 of the Code, it was for the learned Judge to go into the details of the allegations made against each of the accused persons so as to form an opinion as to whether any case at all has been made out or not as a strong suspicion in regard thereto shall subserve the requirements of law.It has not been argued before us that the learned Judge, in arriving at the said opinion, committed any error of law or the same otherwise suffers from any illegality so as to enable the High Court to interfere with the same matter. A prima facie case has been found out against the appellant. There is no error apparent on the face of the record warranting interference therewith.The jurisdiction of the Court under Article 142 of the Constitution of India is not in dispute. Exercise of such power would, however, depend on the facts and circumstance of each case. The High Court, in exercise of its jurisdiction under Section 482 of the Code of Criminal procedure, and this Court, in terms of Article 142 of the Constitution of India, would not direct quashing of a case involving crime against the society particularly when both the learned Special Judge as also the High Court have found that a prima facie case has been made out against the appellant herein for framing charge.
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Dava Son Of Bhimji Gohil Vs. Joint Chief Controller Of Imports & Exports | mine-owners like the appellant. The livelihood of a person cannot be made to depend upon the passing moods of an officer of a State corporation, however well-intentioned he may be in the discharge of his duties. The scheme of channelling of exports through an agency or agencies could certainly be dovetailed with that of equitable apportionment of quotas amongst persons producing or doing business in manganese ore without any detriment to the object of promoting export trade Any scheme of can- alization of exports through specialized agencies must be governed by definite rules whereunder provision is made giving stability and guarantee of fair treatment in ordinary times as well as in times of emergency. For instance appropriate rules could be framed fixing quotas for each mine-owner the expected total quantity of export, having regard to the quality and the quantity of manganese produced. It may also be necessary to appoint an expert body under the said rules not only to advise the State in fixing the quota but also for fixing reasonable prices, having regard to the relevant circumstances. Perhaps, many other methods may be evolved to achieve the said result. It is for the Government and the experts to do so. But what I emphasize is that, matters shall not be kept, , in a vague uncertainty in the minds of, persons affected by the said scheme, but the Government should evolve definite principles by making rules, of course providing for emergencies and change of circumstances. I should not be understood to have tied down the hands of the Central Government by the said observations, for it is left to it to make appropriate rules in the light of the said observations.At this stage, another contention of learned counsel for the appellant may be noticed. He argues that, unless a law is made by the State for carrying on the business by a corporation, owned or controlled by the State, to the exclusion, complete or partial of citizens, a virtual monopoly brought about by administrative action under the colour of a power to canalize the trade in a particular commodity through specified channels must necessarily be an unreasonable res- triotion on the right of a citizen to carry on his business in that commodity. In support of this contention reliance is placed upon Art. 19(6) of the Constitution, as amended by the Constitution (First Amendment) Act, 1951, the material part of which reads: "Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause, shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, - (i)................................................ (ii) the carrying on by the State, or by a corporation, owned or controlled by the State, of any trade, business industry or service.- whether to the exclusion, complete or partial, of citizens or otherwise."16. The amended article does not propric vigore confer any power on the State to create monopolies by administrative action. But, it is only says that if a valid law is made conferring a power on the State to carry on trade or business to the exclusion, complete or partial, of citizens, such a law will not infringe the fundamental right guaranteed under Art. 19 (1)(g) of the Constitution. It does not also say, as learned counsel for the appellant argues, that unless such a law is made, every interference by the State with the trade of a citizen in exercise of a power under some other law would necessarily be an unreasonable restriction: such an interference will not have the protection of the amended provision of the Constitution, but must be judged by the standard provided by the first part of Art. 19(6); it would be valid, if it was a reasonable restriction on the exercise of the petitioners fundamental right made in the interest of the general public. The decision of this Court in Saghir Ahmad v. The State U. P. ((1955) 1 S.C.R. 707, 727.) does not really help the appellant. there, this Court was considering the question whether the U. P. Road Transport Act (11 of 1951) violated the fundamental rights of private citizens guaranteed under Art. 19 (1)(g) of the Constitution, and was protected by cl. (6) of Art. 19. The question fell to be considered on the basis of the article, , as it stood before it was amended by the Constitution (First Amendment) Act, 1951. This Court held that it did offend the fundamental right. In that context, this Court made the following observations: It is quite true that if the present statute was passed after the coming into force of the new clause in article 19(6) of the Constitution, the question of reasonableness would not have arisen at all and the appellants case on this point, at any rate, would have been unarguable. These are however considerations which cannot affect our decision in the present case, the amendment of the Constitution, which come later, cannot be invoked to validate an earlier legislation which must be regarded as unconstitutional when it was passed." I do not see how these observations help the appellant. They only state the obvious, namely, that if there was a law within the meaning of the amended article, no question of infringing the fundamental right would arise. There is no force in this argument. This question anyhow does not affect my decision, as I have come to the conclusion that the Press Notes issued by the Government clearly infringed the fundamental right of the petitioner.But, in view of the fact that the period for which licence was asked had run out, the application in respect thereof has become infructuous and, therefore has to be dismissed. | 0[ds]In that sense we have no hesitation in holding that the State Trading, Corporation might be a "special" agency or a channel for the purpose of enabling the country to maintain and foster the continuity of its trade in the commodity by ensuring exports in adequate quantity and of proper quality. In this state of circumstances the elimination of the class to which the appellant belongs, viz., newcomers who had no previous experience of the export trade during the basic year or earlier was the result of enforcing a permitted method of control and a type of restriction which it was legally competent to be imposed under 6 (h). In the case of other commodities, "newcomers" have been granted a quota. That however naturally depended upon the nature of the trade, the nature of the export market and other factors which it is the province of government to take into account. Having stated this legal position, we would hasten to add that it was not the view of the Government that the export trade in manganese ore was such into that that newcomers could never be permitted trade is clear from the several, policy-statements themselves in which, from time to, time, they conveyed an assurance that the allotment of quotas to the "newcomers" was under consideration. In the case of a commodity like manganese ore for which there is not much of an internal market the denial of a right to any group or we shall add, to any individual to export would in effect affect him adversely forcing him to sell to others who have been given such a facility. Persons like the app- ellant were being fed on hopes of some relief to them and it was a case not merely of hope deferrer making the heart sick, but of dashed hopes that led the appellant to approach. the Court for relief. Though we consider that the appellant has no legal right to the relief that he sought, his grievance is genuine and it would be for the Government to consider how beat the interest of this class should be protected and it is made worth their while to win the ore so as to expand, foster and augment the export trade in this valuable commodity.Reverting to the legal points raised in the appeal, it appears cleat to us that on the premises (1) that s. 3 of the Import & Export Control Act, 1947 is a valid piece of legislation, (2) that cl. 6 (h) of the Export Control Order is within the rulemaking power of the Central Government and is constitutional, there is no escape from the conclusion that no legally enforceable right of the appellant has been violated for which he could seek redress; under Art. 226 of thethis view it is unnecessary to consider whether the appellant having prayed primarily for the issue of a writ of mandamus to direct the licensing authorities to consider his application for an export licence for the half year current at the date of the petition , without reference to the terms of the impugned notifications and policy statement" and that half year having long ago gone by, he could be granted any relief by the High Court on his petition or by this Court on his appeal. It is possible that in such circumstances a person situated like the appellant might be entitled to a declaration as regards the validity of the restrictions imposed which continue to be in force even beyond the half year or year to which the licence relates. It is however unnecessary to pronounce upon this question which does not really arise for consideration in view of the conclusion that we have reached that the restrictions and control to which the trade has been subjected are legal and justified by the Act and the Rules framed there under. | 0 | 12,104 | 697 | ### 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:
mine-owners like the appellant. The livelihood of a person cannot be made to depend upon the passing moods of an officer of a State corporation, however well-intentioned he may be in the discharge of his duties. The scheme of channelling of exports through an agency or agencies could certainly be dovetailed with that of equitable apportionment of quotas amongst persons producing or doing business in manganese ore without any detriment to the object of promoting export trade Any scheme of can- alization of exports through specialized agencies must be governed by definite rules whereunder provision is made giving stability and guarantee of fair treatment in ordinary times as well as in times of emergency. For instance appropriate rules could be framed fixing quotas for each mine-owner the expected total quantity of export, having regard to the quality and the quantity of manganese produced. It may also be necessary to appoint an expert body under the said rules not only to advise the State in fixing the quota but also for fixing reasonable prices, having regard to the relevant circumstances. Perhaps, many other methods may be evolved to achieve the said result. It is for the Government and the experts to do so. But what I emphasize is that, matters shall not be kept, , in a vague uncertainty in the minds of, persons affected by the said scheme, but the Government should evolve definite principles by making rules, of course providing for emergencies and change of circumstances. I should not be understood to have tied down the hands of the Central Government by the said observations, for it is left to it to make appropriate rules in the light of the said observations.At this stage, another contention of learned counsel for the appellant may be noticed. He argues that, unless a law is made by the State for carrying on the business by a corporation, owned or controlled by the State, to the exclusion, complete or partial of citizens, a virtual monopoly brought about by administrative action under the colour of a power to canalize the trade in a particular commodity through specified channels must necessarily be an unreasonable res- triotion on the right of a citizen to carry on his business in that commodity. In support of this contention reliance is placed upon Art. 19(6) of the Constitution, as amended by the Constitution (First Amendment) Act, 1951, the material part of which reads: "Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause, shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, - (i)................................................ (ii) the carrying on by the State, or by a corporation, owned or controlled by the State, of any trade, business industry or service.- whether to the exclusion, complete or partial, of citizens or otherwise."16. The amended article does not propric vigore confer any power on the State to create monopolies by administrative action. But, it is only says that if a valid law is made conferring a power on the State to carry on trade or business to the exclusion, complete or partial, of citizens, such a law will not infringe the fundamental right guaranteed under Art. 19 (1)(g) of the Constitution. It does not also say, as learned counsel for the appellant argues, that unless such a law is made, every interference by the State with the trade of a citizen in exercise of a power under some other law would necessarily be an unreasonable restriction: such an interference will not have the protection of the amended provision of the Constitution, but must be judged by the standard provided by the first part of Art. 19(6); it would be valid, if it was a reasonable restriction on the exercise of the petitioners fundamental right made in the interest of the general public. The decision of this Court in Saghir Ahmad v. The State U. P. ((1955) 1 S.C.R. 707, 727.) does not really help the appellant. there, this Court was considering the question whether the U. P. Road Transport Act (11 of 1951) violated the fundamental rights of private citizens guaranteed under Art. 19 (1)(g) of the Constitution, and was protected by cl. (6) of Art. 19. The question fell to be considered on the basis of the article, , as it stood before it was amended by the Constitution (First Amendment) Act, 1951. This Court held that it did offend the fundamental right. In that context, this Court made the following observations: It is quite true that if the present statute was passed after the coming into force of the new clause in article 19(6) of the Constitution, the question of reasonableness would not have arisen at all and the appellants case on this point, at any rate, would have been unarguable. These are however considerations which cannot affect our decision in the present case, the amendment of the Constitution, which come later, cannot be invoked to validate an earlier legislation which must be regarded as unconstitutional when it was passed." I do not see how these observations help the appellant. They only state the obvious, namely, that if there was a law within the meaning of the amended article, no question of infringing the fundamental right would arise. There is no force in this argument. This question anyhow does not affect my decision, as I have come to the conclusion that the Press Notes issued by the Government clearly infringed the fundamental right of the petitioner.But, in view of the fact that the period for which licence was asked had run out, the application in respect thereof has become infructuous and, therefore has to be dismissed.
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In that sense we have no hesitation in holding that the State Trading, Corporation might be a "special" agency or a channel for the purpose of enabling the country to maintain and foster the continuity of its trade in the commodity by ensuring exports in adequate quantity and of proper quality. In this state of circumstances the elimination of the class to which the appellant belongs, viz., newcomers who had no previous experience of the export trade during the basic year or earlier was the result of enforcing a permitted method of control and a type of restriction which it was legally competent to be imposed under 6 (h). In the case of other commodities, "newcomers" have been granted a quota. That however naturally depended upon the nature of the trade, the nature of the export market and other factors which it is the province of government to take into account. Having stated this legal position, we would hasten to add that it was not the view of the Government that the export trade in manganese ore was such into that that newcomers could never be permitted trade is clear from the several, policy-statements themselves in which, from time to, time, they conveyed an assurance that the allotment of quotas to the "newcomers" was under consideration. In the case of a commodity like manganese ore for which there is not much of an internal market the denial of a right to any group or we shall add, to any individual to export would in effect affect him adversely forcing him to sell to others who have been given such a facility. Persons like the app- ellant were being fed on hopes of some relief to them and it was a case not merely of hope deferrer making the heart sick, but of dashed hopes that led the appellant to approach. the Court for relief. Though we consider that the appellant has no legal right to the relief that he sought, his grievance is genuine and it would be for the Government to consider how beat the interest of this class should be protected and it is made worth their while to win the ore so as to expand, foster and augment the export trade in this valuable commodity.Reverting to the legal points raised in the appeal, it appears cleat to us that on the premises (1) that s. 3 of the Import & Export Control Act, 1947 is a valid piece of legislation, (2) that cl. 6 (h) of the Export Control Order is within the rulemaking power of the Central Government and is constitutional, there is no escape from the conclusion that no legally enforceable right of the appellant has been violated for which he could seek redress; under Art. 226 of thethis view it is unnecessary to consider whether the appellant having prayed primarily for the issue of a writ of mandamus to direct the licensing authorities to consider his application for an export licence for the half year current at the date of the petition , without reference to the terms of the impugned notifications and policy statement" and that half year having long ago gone by, he could be granted any relief by the High Court on his petition or by this Court on his appeal. It is possible that in such circumstances a person situated like the appellant might be entitled to a declaration as regards the validity of the restrictions imposed which continue to be in force even beyond the half year or year to which the licence relates. It is however unnecessary to pronounce upon this question which does not really arise for consideration in view of the conclusion that we have reached that the restrictions and control to which the trade has been subjected are legal and justified by the Act and the Rules framed there under.
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DELHI DAYALBAGH COOPERATIVE HOUSE BUILDING SOCIETY LTD Vs. REGISTRAR COOPERATIVE SOCIETIES | of the Act, 2003 can have a force of law. 42. As regards clauses 2 & 3 of the original sale deed executed between the member of the society at the time of initial allotment is concerned, the society reserves its pre-emptive rights to have a cooling period of six months before the member may have an opportunity to transfer the subject plot in the manner he or she likes at least there was no absolute bar or restrain under clause 2 or 3 of the original sale deed, of which reference has been made, to transfer the land or is otherwise impermissible to a non-member under any other laws. But it was possible with prior notice to the society and the cooling period of six months which may enable the society to purchase the plot on the market value and if it is unable to purchase, the member reserves the right to transfer or sell out the plot in a manner he or she likes reserving the pre-emptive rights of the society. In the given circumstances, transfer by a registered instrument cannot be held void unless it is in contravention of any law, which is not the case of the appellant society. 43. It reveals that what transpired before the Tribunal or the High Court was whether the transfer of title by a registered instrument as alleged was open for scrutiny within the scope of Section 70 of Act, 2003. Although it was never the case of the appellant society that alleged registered sale deed was void ab initio, bad or obtained by fraud or malpractices and it was also not the case of the appellant society that the member of the society in transferring the rights over the property by a registered sale deed, is in violation of any of the provisions of the Act of 2003, or the rules of 2007 framed thereunder. 44. It is gainful to add that the possession was handed over to the society on fulfilment of the conditions of the agreement dated 13 th May, 1955, published in the Gazette under Section 42 of the Land Acquisition Act, and became the law as observed, that at the time when the possession was handed over to the society by the State Government, no further deed or MOU was executed restricting the rights of the society for fulfilment of its obligation of its plots to its members, that persuades to infer that the possession was handed over to the society of the subject land in question by the Government free from encumbrances with unrestrictive rights to execute the sale deed/allot the plots to its members obviously as per its bye-laws keeping in view of the mandate of the statutory provisions of the Act, 1973 or Act, 2003 which has later on taken over the field in protecting the interests of the members of the cooperative societies including the cooperative housing society as in the instant case. 45. It may be relevant to note that the subject land was throughout exhibited by the society as freehold land having ownership rights and allotments were made by the society to its members by the registered sale deed at the time of allotment of plots. It is to be noticed that a letter dated 27 th July, 1985 was written by the Secretary of the society to the Lt. Governor and it was mentioned in paragraph 2 of the letter that Delhi Administration acquired 30 acres of land allotted to the society on 25 th March, 1957 on freehold basis. Later, in the letter dated 15 th March, 1989 issued to the Secretary of the Society it was certified that the status of the land is totally freehold and allotment of the plots to the society members was also on the basis of it and the society at one stage approached to the civil Court in RCA No. 95/82 titled Delhi Dayalbagh Cooperative House Building Society Ltd. Vs. Arjun Das and it was observed by the learned trial Judge that the land in dispute is freehold one and there is no legal bar to the same being sold. In the given facts and circumstances, if the allotment has been made by the society as a freehold land to its members who have further transferred/sold the subject land/plot by registered sale deed to its successors/purchasers, their rights to become member of the society are indeed saved under Section 91 of the Act, 2003 that in no manner could be eluded by the bye-laws and that apart if anyone has any objection regarding the registered instrument(sale deed) pursuant to which right has been created, at least it is not open to examine its validity within the domain and ambit of Section 70 of the cooperative societies Act and any person, if felt aggrieved, the remedy lies only before the civil Court having jurisdiction questioning the registered instrument within the parameters available under the law. 46. The appellant society at one stage in their counter affidavit has stated that the subject land is a grant under the Government Grants Act. It was nowhere the case ever set up and it was raised just to denude the rights of the parties which deserves outright rejection for the additional reason that the subject land was acquired by the Government under Part VII of the Land Acquisition Act and transferred to the society free from encumbrances, there is no applicability to the Government Grants Act. The judgment on which reliance was placed by the learned senior counsel for the appellant in Mohsin Ali and Others Vs. State of Madhya Pradesh 1975(2) SCC 122 may not be of any assistance. 47. As regards submission made in respect to Section 44A of the Act is concerned, it may not have any application, since the rights of the parties are governed after the land stood vested with the society free from encumbrances and regulated under the special enactment of the Act 2003 and Rules 2007 framed thereunder. | 0[ds]It is not the case of either party that there was any breach or violation of the terms and conditions which has been referred to under the agreement dated 13 th May, 1955 either by the society or its members or the purchasers or the successors in interest32. The emphasis of learned senior counsel for the appellant that the title of the land in question never stood transferred to the society in the absence of the deed of conveyance been executed, is without substance for the reason that the title at the first place in favour of the society was not created by any of the modes ascribable to the Transfer of Property Act and once the acquisition proceedings have been initiated by the Government, on fulfilment of the conditions referred to under Section 41 of Land Acquisition Act on being published in the Gazette dated 13 th May 1955 under Section 42 of the Act which became the law, there appears no further statutory requirement to register any deed of conveyance under the Transfer of Property Act. Besides it, the consideration amount was paid by the society as demanded by the competent authority and physical and actual possession, free from encumbrances, was delivered to the appellant society and the land stood conveyed and granted in terms of clause 2 of the agreement. At the same time, no party in the instant proceedings ever raised any objection/dispute on the issue of physical possession of the land in question being delivered to the appellant society and/or the same being passed on to the person who have purchased plots/flats therein subsequently. In the given facts and circumstances, it can legitimately be observed that the marketable title in transferring respective plots to its members has created a statutory genesis33. It is also not the case of the appellant society that at any later stage, after the appropriate Government handed over possession, free from encumbrances, of the subject land in question to the society, it ever raised objection in reference to the breach of the terms & conditions of the agreement dated 13 th May, 1955 to resume the subject land or for taking legal recourse in reference to the title of the subject land in question. In the given facts and circumstances, a legal presumption can be drawn that after the peaceful possession free from encumbrances, was handed over by the State Government to the society, all rights of the said land stood vested with the society free from encumbrances and transferred to its members on the terms as indicated in the registered sale deed executed by the society40. The contention of the learned senior counsel for the appellant that the sale/transfer of the plot in question by the member of the society being in violation of condition nos. 2 and 3 of the registered sale deed or clause 51 of the bye-laws which put restriction on the member to transfer or a sale or otherwise to a non-member of the society, without permission of the society in our opinion, deserves to be negated for the reason that there is no restriction/prohibition under the provisions of the Act, 2003 which has been discussed in detail earlier and to be noticed that if the bye-laws to the extent are inconsistent to the provisions of Act 2003, it is the statute which will prevail and it is not the case of the appellant that the transaction of sale/transfer of the plot in question by the member of the society by registered sale deed or registered instrument is in violation of the provisions of the mandate of Act 2003 or rules 2007 framed thereafter41. To the contrary, it appears to be the duty of the Registrar cooperative societies including the registered housing cooperative society to scrutinise the bye-laws of the society and to the extent they are inconsistent with the provisions of Act 2003 or of Rule 2007 framed therein, to ask them to make appropriate corrections and to amend it to make it in conformity with the Act, 2003. It is needless to say that it is the onerous duty of the competent authority to ensure that it performs the statutory task in this behalf but if the task has not been performed as yet, at least no provision in the bye-laws inconsistent with the provisions of the Act, 2003 can have a force of law42. As regards clauses 2 & 3 of the original sale deed executed between the member of the society at the time of initial allotment is concerned, the society reserves its pre-emptive rights to have a cooling period of six months before the member may have an opportunity to transfer the subject plot in the manner he or she likes at least there was no absolute bar or restrain under clause 2 or 3 of the original sale deed, of which reference has been made, to transfer the land or is otherwise impermissible to a non-member under any other laws. But it was possible with prior notice to the society and the cooling period of six months which may enable the society to purchase the plot on the market value and if it is unable to purchase, the member reserves the right to transfer or sell out the plot in a manner he or she likes reserving the pre-emptive rights of the society. In the given circumstances, transfer by a registered instrument cannot be held void unless it is in contravention of any law, which is not the case of the appellant society43. It reveals that what transpired before the Tribunal or the High Court was whether the transfer of title by a registered instrument as alleged was open for scrutiny within the scope of Section 70 of Act, 2003. Although it was never the case of the appellant society that alleged registered sale deed was void ab initio, bad or obtained by fraud or malpractices and it was also not the case of the appellant society that the member of the society in transferring the rights over the property by a registered sale deed, is in violation of any of the provisions of the Act of 2003, or the rules of 2007 framed thereunder44. It is gainful to add that the possession was handed over to the society on fulfilment of the conditions of the agreement dated 13 th May, 1955, published in the Gazette under Section 42 of the Land Acquisition Act, and became the law as observed, that at the time when the possession was handed over to the society by the State Government, no further deed or MOU was executed restricting the rights of the society for fulfilment of its obligation of its plots to its members, that persuades to infer that the possession was handed over to the society of the subject land in question by the Government free from encumbrances with unrestrictive rights to execute the sale deed/allot the plots to its members obviously as per its bye-laws keeping in view of the mandate of the statutory provisions of the Act, 1973 or Act, 2003 which has later on taken over the field in protecting the interests of the members of the cooperative societies including the cooperative housing society as in the instant case46. The appellant society at one stage in their counter affidavit has stated that the subject land is a grant under the Government Grants Act. It was nowhere the case ever set up and it was raised just to denude the rights of the parties which deserves outright rejection for the additional reason that the subject land was acquired by the Government under Part VII of the Land Acquisition Act and transferred to the society free from encumbrances, there is no applicability to the Government Grants Act. The judgment on which reliance was placed by the learned senior counsel for the appellant in Mohsin Ali and Others Vs. State of Madhya Pradesh 1975(2) SCC 122 may not be of any assistance47. As regards submission made in respect to Section 44A of the Act is concerned, it may not have any application, since the rights of the parties are governed after the land stood vested with the society free from encumbrances and regulated under the special enactment of the Act 2003 and Rules 2007 framed | 0 | 11,319 | 1,458 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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of the Act, 2003 can have a force of law. 42. As regards clauses 2 & 3 of the original sale deed executed between the member of the society at the time of initial allotment is concerned, the society reserves its pre-emptive rights to have a cooling period of six months before the member may have an opportunity to transfer the subject plot in the manner he or she likes at least there was no absolute bar or restrain under clause 2 or 3 of the original sale deed, of which reference has been made, to transfer the land or is otherwise impermissible to a non-member under any other laws. But it was possible with prior notice to the society and the cooling period of six months which may enable the society to purchase the plot on the market value and if it is unable to purchase, the member reserves the right to transfer or sell out the plot in a manner he or she likes reserving the pre-emptive rights of the society. In the given circumstances, transfer by a registered instrument cannot be held void unless it is in contravention of any law, which is not the case of the appellant society. 43. It reveals that what transpired before the Tribunal or the High Court was whether the transfer of title by a registered instrument as alleged was open for scrutiny within the scope of Section 70 of Act, 2003. Although it was never the case of the appellant society that alleged registered sale deed was void ab initio, bad or obtained by fraud or malpractices and it was also not the case of the appellant society that the member of the society in transferring the rights over the property by a registered sale deed, is in violation of any of the provisions of the Act of 2003, or the rules of 2007 framed thereunder. 44. It is gainful to add that the possession was handed over to the society on fulfilment of the conditions of the agreement dated 13 th May, 1955, published in the Gazette under Section 42 of the Land Acquisition Act, and became the law as observed, that at the time when the possession was handed over to the society by the State Government, no further deed or MOU was executed restricting the rights of the society for fulfilment of its obligation of its plots to its members, that persuades to infer that the possession was handed over to the society of the subject land in question by the Government free from encumbrances with unrestrictive rights to execute the sale deed/allot the plots to its members obviously as per its bye-laws keeping in view of the mandate of the statutory provisions of the Act, 1973 or Act, 2003 which has later on taken over the field in protecting the interests of the members of the cooperative societies including the cooperative housing society as in the instant case. 45. It may be relevant to note that the subject land was throughout exhibited by the society as freehold land having ownership rights and allotments were made by the society to its members by the registered sale deed at the time of allotment of plots. It is to be noticed that a letter dated 27 th July, 1985 was written by the Secretary of the society to the Lt. Governor and it was mentioned in paragraph 2 of the letter that Delhi Administration acquired 30 acres of land allotted to the society on 25 th March, 1957 on freehold basis. Later, in the letter dated 15 th March, 1989 issued to the Secretary of the Society it was certified that the status of the land is totally freehold and allotment of the plots to the society members was also on the basis of it and the society at one stage approached to the civil Court in RCA No. 95/82 titled Delhi Dayalbagh Cooperative House Building Society Ltd. Vs. Arjun Das and it was observed by the learned trial Judge that the land in dispute is freehold one and there is no legal bar to the same being sold. In the given facts and circumstances, if the allotment has been made by the society as a freehold land to its members who have further transferred/sold the subject land/plot by registered sale deed to its successors/purchasers, their rights to become member of the society are indeed saved under Section 91 of the Act, 2003 that in no manner could be eluded by the bye-laws and that apart if anyone has any objection regarding the registered instrument(sale deed) pursuant to which right has been created, at least it is not open to examine its validity within the domain and ambit of Section 70 of the cooperative societies Act and any person, if felt aggrieved, the remedy lies only before the civil Court having jurisdiction questioning the registered instrument within the parameters available under the law. 46. The appellant society at one stage in their counter affidavit has stated that the subject land is a grant under the Government Grants Act. It was nowhere the case ever set up and it was raised just to denude the rights of the parties which deserves outright rejection for the additional reason that the subject land was acquired by the Government under Part VII of the Land Acquisition Act and transferred to the society free from encumbrances, there is no applicability to the Government Grants Act. The judgment on which reliance was placed by the learned senior counsel for the appellant in Mohsin Ali and Others Vs. State of Madhya Pradesh 1975(2) SCC 122 may not be of any assistance. 47. As regards submission made in respect to Section 44A of the Act is concerned, it may not have any application, since the rights of the parties are governed after the land stood vested with the society free from encumbrances and regulated under the special enactment of the Act 2003 and Rules 2007 framed thereunder.
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be drawn that after the peaceful possession free from encumbrances, was handed over by the State Government to the society, all rights of the said land stood vested with the society free from encumbrances and transferred to its members on the terms as indicated in the registered sale deed executed by the society40. The contention of the learned senior counsel for the appellant that the sale/transfer of the plot in question by the member of the society being in violation of condition nos. 2 and 3 of the registered sale deed or clause 51 of the bye-laws which put restriction on the member to transfer or a sale or otherwise to a non-member of the society, without permission of the society in our opinion, deserves to be negated for the reason that there is no restriction/prohibition under the provisions of the Act, 2003 which has been discussed in detail earlier and to be noticed that if the bye-laws to the extent are inconsistent to the provisions of Act 2003, it is the statute which will prevail and it is not the case of the appellant that the transaction of sale/transfer of the plot in question by the member of the society by registered sale deed or registered instrument is in violation of the provisions of the mandate of Act 2003 or rules 2007 framed thereafter41. To the contrary, it appears to be the duty of the Registrar cooperative societies including the registered housing cooperative society to scrutinise the bye-laws of the society and to the extent they are inconsistent with the provisions of Act 2003 or of Rule 2007 framed therein, to ask them to make appropriate corrections and to amend it to make it in conformity with the Act, 2003. It is needless to say that it is the onerous duty of the competent authority to ensure that it performs the statutory task in this behalf but if the task has not been performed as yet, at least no provision in the bye-laws inconsistent with the provisions of the Act, 2003 can have a force of law42. As regards clauses 2 & 3 of the original sale deed executed between the member of the society at the time of initial allotment is concerned, the society reserves its pre-emptive rights to have a cooling period of six months before the member may have an opportunity to transfer the subject plot in the manner he or she likes at least there was no absolute bar or restrain under clause 2 or 3 of the original sale deed, of which reference has been made, to transfer the land or is otherwise impermissible to a non-member under any other laws. But it was possible with prior notice to the society and the cooling period of six months which may enable the society to purchase the plot on the market value and if it is unable to purchase, the member reserves the right to transfer or sell out the plot in a manner he or she likes reserving the pre-emptive rights of the society. In the given circumstances, transfer by a registered instrument cannot be held void unless it is in contravention of any law, which is not the case of the appellant society43. It reveals that what transpired before the Tribunal or the High Court was whether the transfer of title by a registered instrument as alleged was open for scrutiny within the scope of Section 70 of Act, 2003. Although it was never the case of the appellant society that alleged registered sale deed was void ab initio, bad or obtained by fraud or malpractices and it was also not the case of the appellant society that the member of the society in transferring the rights over the property by a registered sale deed, is in violation of any of the provisions of the Act of 2003, or the rules of 2007 framed thereunder44. It is gainful to add that the possession was handed over to the society on fulfilment of the conditions of the agreement dated 13 th May, 1955, published in the Gazette under Section 42 of the Land Acquisition Act, and became the law as observed, that at the time when the possession was handed over to the society by the State Government, no further deed or MOU was executed restricting the rights of the society for fulfilment of its obligation of its plots to its members, that persuades to infer that the possession was handed over to the society of the subject land in question by the Government free from encumbrances with unrestrictive rights to execute the sale deed/allot the plots to its members obviously as per its bye-laws keeping in view of the mandate of the statutory provisions of the Act, 1973 or Act, 2003 which has later on taken over the field in protecting the interests of the members of the cooperative societies including the cooperative housing society as in the instant case46. The appellant society at one stage in their counter affidavit has stated that the subject land is a grant under the Government Grants Act. It was nowhere the case ever set up and it was raised just to denude the rights of the parties which deserves outright rejection for the additional reason that the subject land was acquired by the Government under Part VII of the Land Acquisition Act and transferred to the society free from encumbrances, there is no applicability to the Government Grants Act. The judgment on which reliance was placed by the learned senior counsel for the appellant in Mohsin Ali and Others Vs. State of Madhya Pradesh 1975(2) SCC 122 may not be of any assistance47. As regards submission made in respect to Section 44A of the Act is concerned, it may not have any application, since the rights of the parties are governed after the land stood vested with the society free from encumbrances and regulated under the special enactment of the Act 2003 and Rules 2007 framed
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Shakuntala Chandrakant Shreshti Vs. Prabhakar Maruti Garvali | must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act" 33. The question recently has been considered by a Bench of this Court in Jyothi Ademma v. Plant Engineer, Nellore, [2006 (7) SCALE 28 ] wherein it was opined : "The expression "accident" means an untoward mishap which is not expected or designed. "Injury" means physiological injury. In Fenton v. Thorley & Co. Ltd. (1903) AC 448, it was observed that the expression "accident" is used in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed. The above view of Lord Macnaghten was qualified by the speech of Lord Haldane A.C. in Trim Joint District, School Board of Management v. Kelly (1914) A.C. 676 as follows:"I think that the context shows that in using the word "designed" Lord Macnaghten was referring to designed by the sufferer". " 34. Learned counsel appearing on behalf of Appellant seeks to distinguish this decision stating that therein the job of the workman was merely to switch on and switch off and thus there has been no scope of stress and strain in his duties and that the workman had been suffering from a heart disease. But in this case also job of a cleaner was not strenuous and in any event far less that of driver of the vehicle.35. Only because the cause of death was due to heart attack, the same by itself may not be a ground to arrive at a conclusion that an accident had occurred resulting in injury.36. The nature of duty of the deceased was that of a helper. Per se that the duties would not be such which could cause stress or strain. If an additional duty were required to be performed by him, the same was required to be clearly stated.37. Unless evidence is brought on record to elaborate that the death by way of cardiac arrest has occurred because of stress or strain, the Commissioner would not have jurisdiction to grant damages. In other words, the claimant was bound to prove jurisdictional fact before the Commissioner. Unless such jurisdictional facts are found, the Commissioner will have no jurisdiction to pass an order. It is now well-settled that for arriving at a finding of a jurisdictional fact, reference to any precedent would not be helpful as a little deviation from the fact of a decided case or an additional fact may make a lot of difference by arriving at a correct conclusion. For the said purpose, the statutory authority is required to pose unto himself the right question.38. Section 30 of the said Act postulates an appeal directly to High Court if a substantial question of law is involved in the appeal. 39. A jurisdictional question will involve a substantial question of law. A finding of fact arrived at without there being any evidence would also give rise to a substantial question of law. From the order passed by the Commissioner, it appears, he has not arrived at a finding that the job involved any stress or strain. It was merely stated that he was working as a Khalasi in a truck which was going to Tavarewadi Village from Kolhapur to get the milk. The autopsy was conducted at Chandgad District Hospital. The driver Prashant Chandrakant Shreshti admittedly brought him to hospital. He was his brother. The post mortem examination commenced from 6.30 a.m. on 28.9.2002 and ended at 7.30 a.m. on the same day. From the post mortem report, it appears that in the accompanying report, it is stated that the death was due to sudden heart attack. When exactly the death took place is not known. It will bear repetition to state that under what circumstances the death took place is also not known. There was also no pleading in this behalf. The Commissioner came to the conclusion that the death took place during the course of the employment but then no evidence has been brought on record to show that it had a causal connection between accident and serious injury so as to fulfill the requirements of the terms "out of employment". Indisputably, there has to be an proximate nexus between cause of death and employment. A stray statement made by Appellant that the deceased had died while working in the vehicle and stress or strain of the work did not appear to have any foundation. Admittedly she was not present at the spot. She had also no personal knowledge. All these facts she had admitted in cross-examination.40. This vital aspect of the matter was required to be considered by the High Court so as to arrive at a finding as to how the said accident has arose or not.41. A question of law would arise when the same is not dependent upon examination of evidence, which may not require any fresh investigation of fact. A question of law would, however, arise when the finding is perverse in the sense that no legal evidence was brought on record or jurisdictional facts were not brought on record.42. We are not oblivious of the proposition of law as was stated by Frankfurter, J. in J.J.O Leary, Dy. Commnr., Fourteenth Compensation Distt. v. Brown-Pacific-Maxon Inc. [95 L. Ed 483 : 340 US 504 (1950)] that the court will not disturb a finding of an Administrative Tribunal when two views are possible and only because the appellate court can take a contrary view. But in the instant case, the Commissioner did not go into the jurisdictional facts not arrived at any finding based on any legal evidence in regard to the causal connection between the employment and the death.43. We, therefore, are of the opinion that ultimate conclusion of the High Court may be correct. We although would not, thus, interfere with the impugned judgment, but would direct that in event any amount has been paid to Appellant the same need not be refunded. | 0[ds]34. Learned counsel appearing on behalf of Appellant seeks to distinguish this decision stating that therein the job of the workman was merely to switch on and switch off and thus there has been no scope of stress and strain in his duties and that the workman had been suffering from a heart disease. But in this case also job of a cleaner was not strenuous and in any event far less that of driver of the vehicle.35. Only because the cause of death was due to heart attack, the same by itself may not be a ground to arrive at a conclusion that an accident had occurred resulting in injury.36. The nature of duty of the deceased was that of a helper. Per se that the duties would not be such which could cause stress or strain. If an additional duty were required to be performed by him, the same was required to be clearly stated.37. Unless evidence is brought on record to elaborate that the death by way of cardiac arrest has occurred because of stress or strain, the Commissioner would not have jurisdiction to grant damages. In other words, the claimant was bound to prove jurisdictional fact before the Commissioner. Unless such jurisdictional facts are found, the Commissioner will have no jurisdiction to pass an order. It is nowthat for arriving at a finding of a jurisdictional fact, reference to any precedent would not be helpful as a little deviation from the fact of a decided case or an additional fact may make a lot of difference by arriving at a correct conclusion. For the said purpose, the statutory authority is required to pose unto himself the right question.38. Section 30 of the said Act postulates an appeal directly to High Court if a substantial question of law is involved in theA jurisdictional question will involve a substantial question of law. A finding of fact arrived at without there being any evidence would also give rise to a substantial question of law. From the order passed by the Commissioner, it appears, he has not arrived at a finding that the job involved any stress or strain. It was merely stated that he was working as a Khalasi in a truck which was going to Tavarewadi Village from Kolhapur to get the milk. The autopsy was conducted at Chandgad District Hospital. The driver Prashant Chandrakant Shreshti admittedly brought him to hospital. He was his brother. The post mortem examination commenced from 6.30 a.m. on 28.9.2002 and ended at 7.30 a.m. on the same day. From the post mortem report, it appears that in the accompanying report, it is stated that the death was due to sudden heart attack. When exactly the death took place is not known. It will bear repetition to state that under what circumstances the death took place is also not known. There was also no pleading in this behalf. The Commissioner came to the conclusion that the death took place during the course of the employment but then no evidence has been brought on record to show that it had a causal connection between accident and serious injury so as to fulfill the requirements of the terms "out of employment". Indisputably, there has to be an proximate nexus between cause of death and employment. A stray statement made by Appellant that the deceased had died while working in the vehicle and stress or strain of the work did not appear to have any foundation. Admittedly she was not present at the spot. She had also no personal knowledge. All these facts she had admitted in cross-examination.40. This vital aspect of the matter was required to be considered by the High Court so as to arrive at a finding as to how the said accident has arose or not.41. A question of law would arise when the same is not dependent upon examination of evidence, which may not require any fresh investigation of fact. A question of law would, however, arise when the finding is perverse in the sense that no legal evidence was brought on record or jurisdictional facts were not brought on record.42. We are not oblivious of the proposition of law as was stated by Frankfurter, J. in J.J.O Leary, Dy. Commnr., Fourteenth Compensation Distt. v. Brown-Pacific-Maxon Inc. [95 L. Ed 483 : 340 US 504 (1950)] that the court will not disturb a finding of an Administrative Tribunal when two views are possible and only because the appellate court can take a contrary view. But in the instant case, the Commissioner did not go into the jurisdictional facts not arrived at any finding based on any legal evidence in regard to the causal connection between the employment and the death.43. We, therefore, are of the opinion that ultimate conclusion of the High Court may be correct. We although would not, thus, interfere with the impugned judgment, but would direct that in event any amount has been paid to Appellant the same need not be refunded. | 0 | 4,351 | 907 | ### 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:
must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act" 33. The question recently has been considered by a Bench of this Court in Jyothi Ademma v. Plant Engineer, Nellore, [2006 (7) SCALE 28 ] wherein it was opined : "The expression "accident" means an untoward mishap which is not expected or designed. "Injury" means physiological injury. In Fenton v. Thorley & Co. Ltd. (1903) AC 448, it was observed that the expression "accident" is used in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed. The above view of Lord Macnaghten was qualified by the speech of Lord Haldane A.C. in Trim Joint District, School Board of Management v. Kelly (1914) A.C. 676 as follows:"I think that the context shows that in using the word "designed" Lord Macnaghten was referring to designed by the sufferer". " 34. Learned counsel appearing on behalf of Appellant seeks to distinguish this decision stating that therein the job of the workman was merely to switch on and switch off and thus there has been no scope of stress and strain in his duties and that the workman had been suffering from a heart disease. But in this case also job of a cleaner was not strenuous and in any event far less that of driver of the vehicle.35. Only because the cause of death was due to heart attack, the same by itself may not be a ground to arrive at a conclusion that an accident had occurred resulting in injury.36. The nature of duty of the deceased was that of a helper. Per se that the duties would not be such which could cause stress or strain. If an additional duty were required to be performed by him, the same was required to be clearly stated.37. Unless evidence is brought on record to elaborate that the death by way of cardiac arrest has occurred because of stress or strain, the Commissioner would not have jurisdiction to grant damages. In other words, the claimant was bound to prove jurisdictional fact before the Commissioner. Unless such jurisdictional facts are found, the Commissioner will have no jurisdiction to pass an order. It is now well-settled that for arriving at a finding of a jurisdictional fact, reference to any precedent would not be helpful as a little deviation from the fact of a decided case or an additional fact may make a lot of difference by arriving at a correct conclusion. For the said purpose, the statutory authority is required to pose unto himself the right question.38. Section 30 of the said Act postulates an appeal directly to High Court if a substantial question of law is involved in the appeal. 39. A jurisdictional question will involve a substantial question of law. A finding of fact arrived at without there being any evidence would also give rise to a substantial question of law. From the order passed by the Commissioner, it appears, he has not arrived at a finding that the job involved any stress or strain. It was merely stated that he was working as a Khalasi in a truck which was going to Tavarewadi Village from Kolhapur to get the milk. The autopsy was conducted at Chandgad District Hospital. The driver Prashant Chandrakant Shreshti admittedly brought him to hospital. He was his brother. The post mortem examination commenced from 6.30 a.m. on 28.9.2002 and ended at 7.30 a.m. on the same day. From the post mortem report, it appears that in the accompanying report, it is stated that the death was due to sudden heart attack. When exactly the death took place is not known. It will bear repetition to state that under what circumstances the death took place is also not known. There was also no pleading in this behalf. The Commissioner came to the conclusion that the death took place during the course of the employment but then no evidence has been brought on record to show that it had a causal connection between accident and serious injury so as to fulfill the requirements of the terms "out of employment". Indisputably, there has to be an proximate nexus between cause of death and employment. A stray statement made by Appellant that the deceased had died while working in the vehicle and stress or strain of the work did not appear to have any foundation. Admittedly she was not present at the spot. She had also no personal knowledge. All these facts she had admitted in cross-examination.40. This vital aspect of the matter was required to be considered by the High Court so as to arrive at a finding as to how the said accident has arose or not.41. A question of law would arise when the same is not dependent upon examination of evidence, which may not require any fresh investigation of fact. A question of law would, however, arise when the finding is perverse in the sense that no legal evidence was brought on record or jurisdictional facts were not brought on record.42. We are not oblivious of the proposition of law as was stated by Frankfurter, J. in J.J.O Leary, Dy. Commnr., Fourteenth Compensation Distt. v. Brown-Pacific-Maxon Inc. [95 L. Ed 483 : 340 US 504 (1950)] that the court will not disturb a finding of an Administrative Tribunal when two views are possible and only because the appellate court can take a contrary view. But in the instant case, the Commissioner did not go into the jurisdictional facts not arrived at any finding based on any legal evidence in regard to the causal connection between the employment and the death.43. We, therefore, are of the opinion that ultimate conclusion of the High Court may be correct. We although would not, thus, interfere with the impugned judgment, but would direct that in event any amount has been paid to Appellant the same need not be refunded.
### Response:
0
### Explanation:
34. Learned counsel appearing on behalf of Appellant seeks to distinguish this decision stating that therein the job of the workman was merely to switch on and switch off and thus there has been no scope of stress and strain in his duties and that the workman had been suffering from a heart disease. But in this case also job of a cleaner was not strenuous and in any event far less that of driver of the vehicle.35. Only because the cause of death was due to heart attack, the same by itself may not be a ground to arrive at a conclusion that an accident had occurred resulting in injury.36. The nature of duty of the deceased was that of a helper. Per se that the duties would not be such which could cause stress or strain. If an additional duty were required to be performed by him, the same was required to be clearly stated.37. Unless evidence is brought on record to elaborate that the death by way of cardiac arrest has occurred because of stress or strain, the Commissioner would not have jurisdiction to grant damages. In other words, the claimant was bound to prove jurisdictional fact before the Commissioner. Unless such jurisdictional facts are found, the Commissioner will have no jurisdiction to pass an order. It is nowthat for arriving at a finding of a jurisdictional fact, reference to any precedent would not be helpful as a little deviation from the fact of a decided case or an additional fact may make a lot of difference by arriving at a correct conclusion. For the said purpose, the statutory authority is required to pose unto himself the right question.38. Section 30 of the said Act postulates an appeal directly to High Court if a substantial question of law is involved in theA jurisdictional question will involve a substantial question of law. A finding of fact arrived at without there being any evidence would also give rise to a substantial question of law. From the order passed by the Commissioner, it appears, he has not arrived at a finding that the job involved any stress or strain. It was merely stated that he was working as a Khalasi in a truck which was going to Tavarewadi Village from Kolhapur to get the milk. The autopsy was conducted at Chandgad District Hospital. The driver Prashant Chandrakant Shreshti admittedly brought him to hospital. He was his brother. The post mortem examination commenced from 6.30 a.m. on 28.9.2002 and ended at 7.30 a.m. on the same day. From the post mortem report, it appears that in the accompanying report, it is stated that the death was due to sudden heart attack. When exactly the death took place is not known. It will bear repetition to state that under what circumstances the death took place is also not known. There was also no pleading in this behalf. The Commissioner came to the conclusion that the death took place during the course of the employment but then no evidence has been brought on record to show that it had a causal connection between accident and serious injury so as to fulfill the requirements of the terms "out of employment". Indisputably, there has to be an proximate nexus between cause of death and employment. A stray statement made by Appellant that the deceased had died while working in the vehicle and stress or strain of the work did not appear to have any foundation. Admittedly she was not present at the spot. She had also no personal knowledge. All these facts she had admitted in cross-examination.40. This vital aspect of the matter was required to be considered by the High Court so as to arrive at a finding as to how the said accident has arose or not.41. A question of law would arise when the same is not dependent upon examination of evidence, which may not require any fresh investigation of fact. A question of law would, however, arise when the finding is perverse in the sense that no legal evidence was brought on record or jurisdictional facts were not brought on record.42. We are not oblivious of the proposition of law as was stated by Frankfurter, J. in J.J.O Leary, Dy. Commnr., Fourteenth Compensation Distt. v. Brown-Pacific-Maxon Inc. [95 L. Ed 483 : 340 US 504 (1950)] that the court will not disturb a finding of an Administrative Tribunal when two views are possible and only because the appellate court can take a contrary view. But in the instant case, the Commissioner did not go into the jurisdictional facts not arrived at any finding based on any legal evidence in regard to the causal connection between the employment and the death.43. We, therefore, are of the opinion that ultimate conclusion of the High Court may be correct. We although would not, thus, interfere with the impugned judgment, but would direct that in event any amount has been paid to Appellant the same need not be refunded.
|
COMMISSIONER OF INCOME TAX, UDAIPUR Vs. M/S CHETAK ENTERPRISES PVT. LTD | agreement was executed with the erstwhile partnership firm, it was clearly understood that the partnership firm would in due course be converted into a registered limited company. That is evident from the communication addressed to the Chief Engineer on 23.10.1998, at the time of replying to the notice inviting bids. An explicit request was made to allow the partnership firm to change its constitution and consequently change of name in the agreement after converting the firm into a company with the existing partners as its Directors. The Chief Engineer being the appropriate authority of the State, vide letter dated 27.8.1999, took note of the request made by the erstwhile partnership firm and informed the said firm that its offer was accepted subject to terms and conditions specified in that regard. It is only after this interaction, an agreement was entered into between the Government of Rajasthan and the erstwhile partnership firm, in which the communication sent by the Chief Engineer, dated 27.8.1999, was made part of the agreement. Notably, after the conversion of the partnership firm into a company under Part IX of the Companies Act, the State authorities noted the change and provided fresh registration code to the assessee-Company. 7. The question is: what is the effect of conversion of partnership firm into a company under Part IX of the Companies Act? That can be discerned from Section 575 of the Companies Act, which reads thus:- 575. Vesting of property on registration.- All property, movable and immovable (including actionable claims), belonging to or vested in a company at the date of its registration in pursuance of this Part, shall, on such registration, pass to and vest in the company as incorporated under this Act for all the estate and interest of the company therein. It is manifest that all properties, movable and immovable (including actionable claims) belonging to or vested in a company at the date of its registration would vest in the company as incorporated under the Act. In other words, the property acquired by a promoter can be claimed by the company after its incorporation without any need for conveyance on account of statutory vesting. On such statutory vesting, all the properties of the firm, in law, vest in the company and the firm is succeeded by the company. The firm ceases to exist and assumes the status of a company after its registration as a company. A priori, it must follow that the business is carried on by the enterprise owned by a company registered in India and the agreement entered into between the erstwhile partnership firm and the State Government, by legal implication, assumes the character of an agreement between the company registered in India and the State Government for (i) developing, (ii) maintaining and operating or (iii) developing, maintaining and operating a new infrastructure facility. 8. For the purpose of considering compliance of clause (a) of Section 80-IA(4)(i), the assessee must be an enterprise carrying on business of (i) developing, (ii) maintaining and operating or (iii) developing, maintaining and operating any infrastructure facility, which enterprise is owned by a company registered in India. That stipulation is fulfilled in the present case, as the registered firm was converted into a company under Part IX of the Companies Act on 28.3.2000, which is before the commencement of Assessment Year 2002-2003. For the assessment year under consideration, the activity undertaken by the assessee is only maintaining and operating or developing, maintaining and operating the infrastructure facility, inasmuch as, the construction of the road was completed on 27.3.2000 and the same was inaugurated on 1.4.2000, whereafter toll tax was being collected by the assessee-Company. 9. As regards clause (b) of Section 80-IA(4)(i), the requirement predicated is that the assessee must have entered into an agreement with the Central Government or a State Government or a local authority or any other statutory body for (i) developing, (ii) maintaining and operating or (iii) developing, maintaining and operating a new infrastructure facility. As aforesaid, in the present case, the agreement was initially executed between the erstwhile partnership firm and the State Government, but with clear understanding that as and when the partnership firm is converted into a company, the name of the company in the agreement so executed be recorded recognising the change. Notably, the agreement itself mentions that M/s. Chetak Enterprises as party to the agreement was meant to include its successors and assignee. Further, the State Government had granted sanction to the company and the original agreement entered into with the firm automatically stood converted in favour of the assessee-Company, which came into existence on 28.3.2000 being the successor of the erstwhile partnership firm. Thus understood, even the stipulation in clause (b) of Section 80-IA(4)(i) is fulfilled by the assessee-Company. Since these are the only two issues which weighed with the assessing officer to deny deduction to the assessee-Company as claimed under Section 80-IA of the Income Tax Act, the first appellate authority was justified in reversing the view taken by the assessing officer. For the same reason, the ITAT, as well as, the High Court have justly affirmed the view taken by the first appellate authority, holding that the respondent/assessee-Company qualified for the deduction under Section 80-IA being an enterprise carrying on the stated business pertaining to infrastructure facility and owned by a Company registered in India on the basis of the agreement executed with the State Government to which the respondent/assessee-Company has succeeded in law after conversion of the partnership firm into a company. 10. Learned counsel for the appellant has relied on the decision of this Court in Giridhar G. Yadalam vs. Commissioner of Wealth Tax & Anr. (2015) 17 SCC 664. In the said decision, the Court had delineated the contours regarding permissibility of purposive interpretation of taxing/fiscal statutes, particularly in the context of an exemption. This decision is of no avail to doubt the correctness of the view taken by the High Court vide the impugned judgment, in the facts of the present case. | 0[ds]8. For the purpose of considering compliance of clause (a) of Section 80-IA(4)(i), the assessee must be an enterprise carrying on business of (i) developing, (ii) maintaining and operating or (iii) developing, maintaining and operating any infrastructure facility, which enterprise is owned by a company registered in India. That stipulation is fulfilled in the present case, as the registered firm was converted into a company under Part IX of the Companies Act on 28.3.2000, which is before the commencement of Assessment Year 2002-2003. For the assessment year under consideration, the activity undertaken by the assessee is only maintaining and operating or developing, maintaining and operating the infrastructure facility, inasmuch as, the construction of the road was completed on 27.3.2000 and the same was inaugurated on 1.4.2000, whereafter toll tax was being collected by the assessee-Company9. As regards clause (b) of Section 80-IA(4)(i), the requirement predicated is that the assessee must have entered into an agreement with the Central Government or a State Government or a local authority or any other statutory body for (i) developing, (ii) maintaining and operating or (iii) developing, maintaining and operating a new infrastructure facility. As aforesaid, in the present case, the agreement was initially executed between the erstwhile partnership firm and the State Government, but with clear understanding that as and when the partnership firm is converted into a company, the name of the company in the agreement so executed be recorded recognising the change. Notably, the agreement itself mentions that M/s. Chetak Enterprises as party to the agreement was meant to include its successors and assignee. Further, the State Government had granted sanction to the company and the original agreement entered into with the firm automatically stood converted in favour of the assessee-Company, which came into existence on 28.3.2000 being the successor of the erstwhile partnership firm. Thus understood, even the stipulation in clause (b) of Section 80-IA(4)(i) is fulfilled by the assessee-Company. Since these are the only two issues which weighed with the assessing officer to deny deduction to the assessee-Company as claimed under Section 80-IA of the Income Tax Act, the first appellate authority was justified in reversing the view taken by the assessing officer. For the same reason, the ITAT, as well as, the High Court have justly affirmed the view taken by the first appellate authority, holding that the respondent/assessee-Company qualified for the deduction under Section 80-IA being an enterprise carrying on the stated business pertaining to infrastructure facility and owned by a Company registered in India on the basis of the agreement executed with the State Government to which the respondent/assessee-Company has succeeded in law after conversion of the partnership firm into a companyIn the said decision, the Court had delineated the contours regarding permissibility of purposive interpretation of taxing/fiscal statutes, particularly in the context of an exemption. This decision is of no avail to doubt the correctness of the view taken by the High Court vide the impugned judgment, in the facts of the present case | 0 | 5,262 | 580 | ### 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:
agreement was executed with the erstwhile partnership firm, it was clearly understood that the partnership firm would in due course be converted into a registered limited company. That is evident from the communication addressed to the Chief Engineer on 23.10.1998, at the time of replying to the notice inviting bids. An explicit request was made to allow the partnership firm to change its constitution and consequently change of name in the agreement after converting the firm into a company with the existing partners as its Directors. The Chief Engineer being the appropriate authority of the State, vide letter dated 27.8.1999, took note of the request made by the erstwhile partnership firm and informed the said firm that its offer was accepted subject to terms and conditions specified in that regard. It is only after this interaction, an agreement was entered into between the Government of Rajasthan and the erstwhile partnership firm, in which the communication sent by the Chief Engineer, dated 27.8.1999, was made part of the agreement. Notably, after the conversion of the partnership firm into a company under Part IX of the Companies Act, the State authorities noted the change and provided fresh registration code to the assessee-Company. 7. The question is: what is the effect of conversion of partnership firm into a company under Part IX of the Companies Act? That can be discerned from Section 575 of the Companies Act, which reads thus:- 575. Vesting of property on registration.- All property, movable and immovable (including actionable claims), belonging to or vested in a company at the date of its registration in pursuance of this Part, shall, on such registration, pass to and vest in the company as incorporated under this Act for all the estate and interest of the company therein. It is manifest that all properties, movable and immovable (including actionable claims) belonging to or vested in a company at the date of its registration would vest in the company as incorporated under the Act. In other words, the property acquired by a promoter can be claimed by the company after its incorporation without any need for conveyance on account of statutory vesting. On such statutory vesting, all the properties of the firm, in law, vest in the company and the firm is succeeded by the company. The firm ceases to exist and assumes the status of a company after its registration as a company. A priori, it must follow that the business is carried on by the enterprise owned by a company registered in India and the agreement entered into between the erstwhile partnership firm and the State Government, by legal implication, assumes the character of an agreement between the company registered in India and the State Government for (i) developing, (ii) maintaining and operating or (iii) developing, maintaining and operating a new infrastructure facility. 8. For the purpose of considering compliance of clause (a) of Section 80-IA(4)(i), the assessee must be an enterprise carrying on business of (i) developing, (ii) maintaining and operating or (iii) developing, maintaining and operating any infrastructure facility, which enterprise is owned by a company registered in India. That stipulation is fulfilled in the present case, as the registered firm was converted into a company under Part IX of the Companies Act on 28.3.2000, which is before the commencement of Assessment Year 2002-2003. For the assessment year under consideration, the activity undertaken by the assessee is only maintaining and operating or developing, maintaining and operating the infrastructure facility, inasmuch as, the construction of the road was completed on 27.3.2000 and the same was inaugurated on 1.4.2000, whereafter toll tax was being collected by the assessee-Company. 9. As regards clause (b) of Section 80-IA(4)(i), the requirement predicated is that the assessee must have entered into an agreement with the Central Government or a State Government or a local authority or any other statutory body for (i) developing, (ii) maintaining and operating or (iii) developing, maintaining and operating a new infrastructure facility. As aforesaid, in the present case, the agreement was initially executed between the erstwhile partnership firm and the State Government, but with clear understanding that as and when the partnership firm is converted into a company, the name of the company in the agreement so executed be recorded recognising the change. Notably, the agreement itself mentions that M/s. Chetak Enterprises as party to the agreement was meant to include its successors and assignee. Further, the State Government had granted sanction to the company and the original agreement entered into with the firm automatically stood converted in favour of the assessee-Company, which came into existence on 28.3.2000 being the successor of the erstwhile partnership firm. Thus understood, even the stipulation in clause (b) of Section 80-IA(4)(i) is fulfilled by the assessee-Company. Since these are the only two issues which weighed with the assessing officer to deny deduction to the assessee-Company as claimed under Section 80-IA of the Income Tax Act, the first appellate authority was justified in reversing the view taken by the assessing officer. For the same reason, the ITAT, as well as, the High Court have justly affirmed the view taken by the first appellate authority, holding that the respondent/assessee-Company qualified for the deduction under Section 80-IA being an enterprise carrying on the stated business pertaining to infrastructure facility and owned by a Company registered in India on the basis of the agreement executed with the State Government to which the respondent/assessee-Company has succeeded in law after conversion of the partnership firm into a company. 10. Learned counsel for the appellant has relied on the decision of this Court in Giridhar G. Yadalam vs. Commissioner of Wealth Tax & Anr. (2015) 17 SCC 664. In the said decision, the Court had delineated the contours regarding permissibility of purposive interpretation of taxing/fiscal statutes, particularly in the context of an exemption. This decision is of no avail to doubt the correctness of the view taken by the High Court vide the impugned judgment, in the facts of the present case.
### Response:
0
### Explanation:
8. For the purpose of considering compliance of clause (a) of Section 80-IA(4)(i), the assessee must be an enterprise carrying on business of (i) developing, (ii) maintaining and operating or (iii) developing, maintaining and operating any infrastructure facility, which enterprise is owned by a company registered in India. That stipulation is fulfilled in the present case, as the registered firm was converted into a company under Part IX of the Companies Act on 28.3.2000, which is before the commencement of Assessment Year 2002-2003. For the assessment year under consideration, the activity undertaken by the assessee is only maintaining and operating or developing, maintaining and operating the infrastructure facility, inasmuch as, the construction of the road was completed on 27.3.2000 and the same was inaugurated on 1.4.2000, whereafter toll tax was being collected by the assessee-Company9. As regards clause (b) of Section 80-IA(4)(i), the requirement predicated is that the assessee must have entered into an agreement with the Central Government or a State Government or a local authority or any other statutory body for (i) developing, (ii) maintaining and operating or (iii) developing, maintaining and operating a new infrastructure facility. As aforesaid, in the present case, the agreement was initially executed between the erstwhile partnership firm and the State Government, but with clear understanding that as and when the partnership firm is converted into a company, the name of the company in the agreement so executed be recorded recognising the change. Notably, the agreement itself mentions that M/s. Chetak Enterprises as party to the agreement was meant to include its successors and assignee. Further, the State Government had granted sanction to the company and the original agreement entered into with the firm automatically stood converted in favour of the assessee-Company, which came into existence on 28.3.2000 being the successor of the erstwhile partnership firm. Thus understood, even the stipulation in clause (b) of Section 80-IA(4)(i) is fulfilled by the assessee-Company. Since these are the only two issues which weighed with the assessing officer to deny deduction to the assessee-Company as claimed under Section 80-IA of the Income Tax Act, the first appellate authority was justified in reversing the view taken by the assessing officer. For the same reason, the ITAT, as well as, the High Court have justly affirmed the view taken by the first appellate authority, holding that the respondent/assessee-Company qualified for the deduction under Section 80-IA being an enterprise carrying on the stated business pertaining to infrastructure facility and owned by a Company registered in India on the basis of the agreement executed with the State Government to which the respondent/assessee-Company has succeeded in law after conversion of the partnership firm into a companyIn the said decision, the Court had delineated the contours regarding permissibility of purposive interpretation of taxing/fiscal statutes, particularly in the context of an exemption. This decision is of no avail to doubt the correctness of the view taken by the High Court vide the impugned judgment, in the facts of the present case
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SHIVAWWA AND ANR Vs. THE BRANCH MANAGER NATIONAL INDIA INSURANCE CO. LTD. AND ANR | of just and reasonable compensation. The High Court based its conclusion that the insurer cannot be saddled with the liability to satisfy the award, on the finding that the deceased was not travelling along with his goods at the time of accident. No more and no less. However, as the said finding recorded by the High Court cannot be sustained, the finding of the Tribunal on the factum that the deceased had travelled along with his goods will have to be affirmed and restored. It would necessarily follow that the insurer was not absolved of its liability to pay the compensation amount awarded to the claimants. We say so because the Tribunal has found, as of fact, that the insurance policy brought on record was a valid policy in respect of the offending tractor for the period commencing from 12.02.2000 to 11.02.2001. 11. Assuming for the sake of argument that the insurance company was not liable to pay compensation amount awarded to the claimants as the offending tractor was duly insured, the insurer would be still liable to pay the compensation amount in the first instance with liberty to recover the same from the owner of the vehicle owner (respondent No.2), in light of the exposition in the case of National Insurance Co. Vs. Swarn Singh and Ors. 1 In paragraph 110 of the said decision, a three-Judge Bench of this Court observed thus: 110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)(ii) of the said Act. (iii) xxx (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish breach on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) xxx (vi) xxx (vii) xxx (viii) xxx (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub- section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims. (emphasis supplied) 12. However, in the facts of the present case, we have no hesitation in taking a view that consequent to affirmation and restoration of the finding of fact recorded by the Tribunal regarding the factum of deceased had travelled along with his goods at the time of accident, the insurer would be obliged to satisfy the compensation amount awarded to the claimants. 13. Reverting to the argument of the appellants that the Tribunal committed manifest error in computing the compensation amount, we find that the appellants (claimants) did not file an appeal for enhancement of compensation amount against that part of the award passed by the Tribunal nor chose to file any cross-objection in the First Appeal filed by the insurer before the High Court. Moreover, from the judgment of the High Court there is no indication that any attempt was made on behalf of the appellants to ask for enhanced compensation amount on the grounds as would have been available to the appellants in that behalf. Significantly, in the present appeal also, the appellants have not asked for anyrelief against that part of the award passed by the Tribunal, regarding the quantum of compensation. The relief claimed in this appeal is only to set aside the decision of the High Court passed in the First Appeal preferred by the insurer. In this backdrop, it will not be appropriate for this Court to consider the argument regarding the quantum of compensation at the instance of the appellants (claimants). 14. As a result, the appeal would succeed only to the extent of setting aside the impugned judgment of the High Court passed in the First Appeal filed by the insurer (respondent No.1) as prayed and consequently, by restoring the Award dated 21 st January, 2008 passed by the Motor Accident Claims Tribunal, Badalkot. We order accordingly. | 1[ds]9. As mentioned earlier, the High Court by a sweeping observation proceeded to reverse the finding of fact recorded by the Tribunal. Whereas, the Tribunal had duly considered the evidence of PW-1, PW-2 and the material accompanying the charge-sheet filed in respect of Crime No.12/2001 as also the plea taken by the insurer and the evidence of RW-1. In our opinion, the conclusion reached by the Tribunal is a possible view, which could not have been disturbed by the High Court in the appeal filed by the insurer, much less in such a casual manner, as has been done by the High Court.10. Notably, the High Court has not even adverted to the other findings recorded by the Tribunal as regards the manner in which accident occurred and, in particular, about the rash and negligent act of the driver of the tractor which had caused the accident resulting into the death of Chanabasayya on the spot due to grievous injuries suffered by him. The High Court has also not adverted to the finding recorded by the Tribunal in respect of Issue Nos.2 and No.3 regarding the proof of age, occupation and income of the deceased and the quantum of just and reasonable compensation. The High Court based its conclusion that the insurer cannot be saddled with the liability to satisfy the award, on the finding that the deceased was not travelling along with his goods at the time of accident. No more and no less. However, as the said finding recorded by the High Court cannot be sustained, the finding of the Tribunal on the factum that the deceased had travelled along with his goods will have to be affirmed and restored. It would necessarily follow that the insurer was not absolved of its liability to pay the compensation amount awarded to the claimants. We say so because the Tribunal has found, as of fact, that the insurance policy brought on record was a valid policy in respect of the offending tractor for the period commencing from 12.02.2000 to 11.02.200112. However, in the facts of the present case, we have no hesitation in taking a view that consequent to affirmation and restoration of the finding of fact recorded by the Tribunal regarding the factum of deceased had travelled along with his goods at the time of accident, the insurer would be obliged to satisfy the compensation amount awarded to the claimants.13. Reverting to the argument of the appellants that the Tribunal committed manifest error in computing the compensation amount, we find that the appellants (claimants) did not file an appeal for enhancement of compensation amount against that part of the award passed by the Tribunal nor chose to file any cross-objection in the First Appeal filed by the insurer before the High Court. Moreover, from the judgment of the High Court there is no indication that any attempt was made on behalf of the appellants to ask for enhanced compensation amount on the grounds as would have been available to the appellants in that behalf. Significantly, in the present appeal also, the appellants have not asked for anyrelief against that part of the award passed by the Tribunal, regarding the quantum of compensation. The relief claimed in this appeal is only to set aside the decision of the High Court passed in the First Appeal preferred by the insurer. In this backdrop, it will not be appropriate for this Court to consider the argument regarding the quantum of compensation at the instance of the appellants (claimants).14. As a result, the appeal would succeed only to the extent of setting aside the impugned judgment of the High Court passed in the First Appeal filed by the insurer (respondent No.1) as prayed and consequently, by restoring the Award datedt January, 2008 passed by the Motor Accident Claims Tribunal, Badalkot. | 1 | 4,241 | 697 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
of just and reasonable compensation. The High Court based its conclusion that the insurer cannot be saddled with the liability to satisfy the award, on the finding that the deceased was not travelling along with his goods at the time of accident. No more and no less. However, as the said finding recorded by the High Court cannot be sustained, the finding of the Tribunal on the factum that the deceased had travelled along with his goods will have to be affirmed and restored. It would necessarily follow that the insurer was not absolved of its liability to pay the compensation amount awarded to the claimants. We say so because the Tribunal has found, as of fact, that the insurance policy brought on record was a valid policy in respect of the offending tractor for the period commencing from 12.02.2000 to 11.02.2001. 11. Assuming for the sake of argument that the insurance company was not liable to pay compensation amount awarded to the claimants as the offending tractor was duly insured, the insurer would be still liable to pay the compensation amount in the first instance with liberty to recover the same from the owner of the vehicle owner (respondent No.2), in light of the exposition in the case of National Insurance Co. Vs. Swarn Singh and Ors. 1 In paragraph 110 of the said decision, a three-Judge Bench of this Court observed thus: 110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)(ii) of the said Act. (iii) xxx (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish breach on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) xxx (vi) xxx (vii) xxx (viii) xxx (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub- section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims. (emphasis supplied) 12. However, in the facts of the present case, we have no hesitation in taking a view that consequent to affirmation and restoration of the finding of fact recorded by the Tribunal regarding the factum of deceased had travelled along with his goods at the time of accident, the insurer would be obliged to satisfy the compensation amount awarded to the claimants. 13. Reverting to the argument of the appellants that the Tribunal committed manifest error in computing the compensation amount, we find that the appellants (claimants) did not file an appeal for enhancement of compensation amount against that part of the award passed by the Tribunal nor chose to file any cross-objection in the First Appeal filed by the insurer before the High Court. Moreover, from the judgment of the High Court there is no indication that any attempt was made on behalf of the appellants to ask for enhanced compensation amount on the grounds as would have been available to the appellants in that behalf. Significantly, in the present appeal also, the appellants have not asked for anyrelief against that part of the award passed by the Tribunal, regarding the quantum of compensation. The relief claimed in this appeal is only to set aside the decision of the High Court passed in the First Appeal preferred by the insurer. In this backdrop, it will not be appropriate for this Court to consider the argument regarding the quantum of compensation at the instance of the appellants (claimants). 14. As a result, the appeal would succeed only to the extent of setting aside the impugned judgment of the High Court passed in the First Appeal filed by the insurer (respondent No.1) as prayed and consequently, by restoring the Award dated 21 st January, 2008 passed by the Motor Accident Claims Tribunal, Badalkot. We order accordingly.
### Response:
1
### Explanation:
9. As mentioned earlier, the High Court by a sweeping observation proceeded to reverse the finding of fact recorded by the Tribunal. Whereas, the Tribunal had duly considered the evidence of PW-1, PW-2 and the material accompanying the charge-sheet filed in respect of Crime No.12/2001 as also the plea taken by the insurer and the evidence of RW-1. In our opinion, the conclusion reached by the Tribunal is a possible view, which could not have been disturbed by the High Court in the appeal filed by the insurer, much less in such a casual manner, as has been done by the High Court.10. Notably, the High Court has not even adverted to the other findings recorded by the Tribunal as regards the manner in which accident occurred and, in particular, about the rash and negligent act of the driver of the tractor which had caused the accident resulting into the death of Chanabasayya on the spot due to grievous injuries suffered by him. The High Court has also not adverted to the finding recorded by the Tribunal in respect of Issue Nos.2 and No.3 regarding the proof of age, occupation and income of the deceased and the quantum of just and reasonable compensation. The High Court based its conclusion that the insurer cannot be saddled with the liability to satisfy the award, on the finding that the deceased was not travelling along with his goods at the time of accident. No more and no less. However, as the said finding recorded by the High Court cannot be sustained, the finding of the Tribunal on the factum that the deceased had travelled along with his goods will have to be affirmed and restored. It would necessarily follow that the insurer was not absolved of its liability to pay the compensation amount awarded to the claimants. We say so because the Tribunal has found, as of fact, that the insurance policy brought on record was a valid policy in respect of the offending tractor for the period commencing from 12.02.2000 to 11.02.200112. However, in the facts of the present case, we have no hesitation in taking a view that consequent to affirmation and restoration of the finding of fact recorded by the Tribunal regarding the factum of deceased had travelled along with his goods at the time of accident, the insurer would be obliged to satisfy the compensation amount awarded to the claimants.13. Reverting to the argument of the appellants that the Tribunal committed manifest error in computing the compensation amount, we find that the appellants (claimants) did not file an appeal for enhancement of compensation amount against that part of the award passed by the Tribunal nor chose to file any cross-objection in the First Appeal filed by the insurer before the High Court. Moreover, from the judgment of the High Court there is no indication that any attempt was made on behalf of the appellants to ask for enhanced compensation amount on the grounds as would have been available to the appellants in that behalf. Significantly, in the present appeal also, the appellants have not asked for anyrelief against that part of the award passed by the Tribunal, regarding the quantum of compensation. The relief claimed in this appeal is only to set aside the decision of the High Court passed in the First Appeal preferred by the insurer. In this backdrop, it will not be appropriate for this Court to consider the argument regarding the quantum of compensation at the instance of the appellants (claimants).14. As a result, the appeal would succeed only to the extent of setting aside the impugned judgment of the High Court passed in the First Appeal filed by the insurer (respondent No.1) as prayed and consequently, by restoring the Award datedt January, 2008 passed by the Motor Accident Claims Tribunal, Badalkot.
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Jai Narain Vyas University, Jodhpur and Anr Vs. Mukesh Sharma Etc. Etc | M.R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Judicature for Rajasthan at Jodhpur in D.B. Spl. Appl. Writ No. 347 of 2019 and other allied writ appeals by which the Division Bench of the High Court has dismissed the said appeals and has confirmed the judgment and order passed by the learned Single Judge passed in respective writ petitions by which the learned Single Judge allowed the said writ petitions and directed the appellant University to regularize their services with all consequential benefits, the employer University has preferred the present appeals. 2. The respective original writ petitioners were appointed on different posts namely viz. Chowkidar/Peon, Book Attendant, LDC, Library Assistant, Junior Accountant, Accountant, Helper, Staff Nurse, Sweeper, Rakshak, Lab Bearer, Lab Attendant, Book Lifter, Security Guard, Matron, Driver/Peon, LDC cum Computer Operator of the appellant- Jai Narayan Vyas University, Jodhpur (hereinafter referred to as the J.N.V. University) on different dates through the placement agency. Since all of them had already put in almost 15-30 years of service, they requested for regularizing their services in the University but their services were not regularized. 2.1 In the year 1999, the meetings of the Sub-Committee constituted by the Vice Chancellor of the University were held on 22.03.1999 and 26.03.1999 for considering regularization of the services of six persons who were rendering their services in a similar fashion like the respondents herein - petitioners in the University on contractual/daily wage basis. The said Sub-Committee recommended for regularization of their services. The said recommendation was confirmed in a Meeting of the Syndicate dated 28.03.1999. Once again, the respondentspetitioners prayed for regularizing their services on the ground of parity in view of the decision taken by the Syndicate of the University on 28.03.1999 whereby six similarly situated employees were confirmed and were also granted regular pay scale. However, the same was not agreed to by the University. 2.2 It is to be noted that the University Administration vide its Notification dated 27.10.2017 sought information in a prescribed proforma from different departments regarding persons rendering the services on contract basis, probably with a view to regularize their services. However, their services were not regularized and therefore separate writ appeals were filed before the High Court and the same were allowed by different Benches of the High Court directing the University to regularize the services of the respondents herein – original writ petitioners with all consequential benefits. 2.3 The judgments and orders passed by different Benches were the subject matter before the Division Bench. By the impugned common judgment and order, the Division Bench of the High Court has dismissed the said appeals. While dismissing the appeals, the Division Bench has also noted that the writ petitions preferred by some of the employees were allowed by the learned Single Judge Benches and the appeals preferred by the Universities were also dismissed by the Division bench and in some of the cases, even the special leave petitions filed by the University before this Court were also dismissed. 2.4 Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the High Court, the University has preferred the present appeals. 3. By order dated 07.02.2022, this Court issued a limited notice to restrict the benefits accruing from the regularization to three years prior to filing of the writ appeals. The order dated 07.02.2022 reads as under:- We have heard Dr. Manish Singhvi, learned Senior Advocate, appearing for the petitioner-University at length. By the impugned judgment and order, the High Court has directed to regularize the services of the respondents with all consequential benefits. In the facts and circumstances of the case, we see no reason to interfere with the impugned judgment and order passed by the High Court granting regularization, more particularly, the concerned employees have been continued in service, may be on contractual basis, for more than 15-30 years of service. The question of law, if any, is kept open. Now, so far as the giving consequential benefits on regularization, we issue limited notice to the respondents, returnable on 14.03.2022 and to show cause why the benefit accruing from the regularization may not be restricted to the three years prior to filing of the writ petitions. Dasti, in addition, is permitted. 4. We have heard Dr. Manish Singhvi, learned Senior Advocate appearing on behalf of the appellant University and Dr. Vineet Kothari and Ms. Chitrangda Rastravara, learned counsel appearing on behalf of the respective respondents – original writ petitioners. These writ petitions were filed in the year 2018/2019. In order to see that there is no heavy financial burden upon the University and at the same time to strike a balance and considering the fact that the respective original writ petitioners have worked for more than 15 to 30 years, if it is ordered that the actual consequential benefits on regularization of their services are restricted to three years prior to filing of the writ petitions, while they are granted the benefit of regularization notionally and with continuity of the service from the date on which the other similarly situated employees were regularized, it will meet the ends of justice. | 1[ds]These writ petitions were filed in the year 2018/2019. In order to see that there is no heavy financial burden upon the University and at the same time to strike a balance and considering the fact that the respective original writ petitioners have worked for more than 15 to 30 years, if it is ordered that the actual consequential benefits on regularization of their services are restricted to three years prior to filing of the writ petitions, while they are granted the benefit of regularization notionally and with continuity of the service from the date on which the other similarly situated employees were regularized, it will meet the ends of justice. | 1 | 955 | 120 | ### 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:
M.R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Judicature for Rajasthan at Jodhpur in D.B. Spl. Appl. Writ No. 347 of 2019 and other allied writ appeals by which the Division Bench of the High Court has dismissed the said appeals and has confirmed the judgment and order passed by the learned Single Judge passed in respective writ petitions by which the learned Single Judge allowed the said writ petitions and directed the appellant University to regularize their services with all consequential benefits, the employer University has preferred the present appeals. 2. The respective original writ petitioners were appointed on different posts namely viz. Chowkidar/Peon, Book Attendant, LDC, Library Assistant, Junior Accountant, Accountant, Helper, Staff Nurse, Sweeper, Rakshak, Lab Bearer, Lab Attendant, Book Lifter, Security Guard, Matron, Driver/Peon, LDC cum Computer Operator of the appellant- Jai Narayan Vyas University, Jodhpur (hereinafter referred to as the J.N.V. University) on different dates through the placement agency. Since all of them had already put in almost 15-30 years of service, they requested for regularizing their services in the University but their services were not regularized. 2.1 In the year 1999, the meetings of the Sub-Committee constituted by the Vice Chancellor of the University were held on 22.03.1999 and 26.03.1999 for considering regularization of the services of six persons who were rendering their services in a similar fashion like the respondents herein - petitioners in the University on contractual/daily wage basis. The said Sub-Committee recommended for regularization of their services. The said recommendation was confirmed in a Meeting of the Syndicate dated 28.03.1999. Once again, the respondentspetitioners prayed for regularizing their services on the ground of parity in view of the decision taken by the Syndicate of the University on 28.03.1999 whereby six similarly situated employees were confirmed and were also granted regular pay scale. However, the same was not agreed to by the University. 2.2 It is to be noted that the University Administration vide its Notification dated 27.10.2017 sought information in a prescribed proforma from different departments regarding persons rendering the services on contract basis, probably with a view to regularize their services. However, their services were not regularized and therefore separate writ appeals were filed before the High Court and the same were allowed by different Benches of the High Court directing the University to regularize the services of the respondents herein – original writ petitioners with all consequential benefits. 2.3 The judgments and orders passed by different Benches were the subject matter before the Division Bench. By the impugned common judgment and order, the Division Bench of the High Court has dismissed the said appeals. While dismissing the appeals, the Division Bench has also noted that the writ petitions preferred by some of the employees were allowed by the learned Single Judge Benches and the appeals preferred by the Universities were also dismissed by the Division bench and in some of the cases, even the special leave petitions filed by the University before this Court were also dismissed. 2.4 Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the High Court, the University has preferred the present appeals. 3. By order dated 07.02.2022, this Court issued a limited notice to restrict the benefits accruing from the regularization to three years prior to filing of the writ appeals. The order dated 07.02.2022 reads as under:- We have heard Dr. Manish Singhvi, learned Senior Advocate, appearing for the petitioner-University at length. By the impugned judgment and order, the High Court has directed to regularize the services of the respondents with all consequential benefits. In the facts and circumstances of the case, we see no reason to interfere with the impugned judgment and order passed by the High Court granting regularization, more particularly, the concerned employees have been continued in service, may be on contractual basis, for more than 15-30 years of service. The question of law, if any, is kept open. Now, so far as the giving consequential benefits on regularization, we issue limited notice to the respondents, returnable on 14.03.2022 and to show cause why the benefit accruing from the regularization may not be restricted to the three years prior to filing of the writ petitions. Dasti, in addition, is permitted. 4. We have heard Dr. Manish Singhvi, learned Senior Advocate appearing on behalf of the appellant University and Dr. Vineet Kothari and Ms. Chitrangda Rastravara, learned counsel appearing on behalf of the respective respondents – original writ petitioners. These writ petitions were filed in the year 2018/2019. In order to see that there is no heavy financial burden upon the University and at the same time to strike a balance and considering the fact that the respective original writ petitioners have worked for more than 15 to 30 years, if it is ordered that the actual consequential benefits on regularization of their services are restricted to three years prior to filing of the writ petitions, while they are granted the benefit of regularization notionally and with continuity of the service from the date on which the other similarly situated employees were regularized, it will meet the ends of justice.
### Response:
1
### Explanation:
These writ petitions were filed in the year 2018/2019. In order to see that there is no heavy financial burden upon the University and at the same time to strike a balance and considering the fact that the respective original writ petitioners have worked for more than 15 to 30 years, if it is ordered that the actual consequential benefits on regularization of their services are restricted to three years prior to filing of the writ petitions, while they are granted the benefit of regularization notionally and with continuity of the service from the date on which the other similarly situated employees were regularized, it will meet the ends of justice.
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M/S TULSI NARAYAN GARG Vs. THE M.P. ROAD DEVELOPMENT AUTHORITY | of the words it is clear that the right of the second party to assess damages would arise only if the breach of conditions is admitted or if no issue is made of it. If is was the intention of the parties that the officer acting on behalf of the State was also entitled to adjudicate upon a dispute regarding the breach of conditions the wording of clause 12 would have been entirely different. It cannot also be argued that a right to adjudicate upon an issue relating to a breach of conditions of the contract would flow from or is inhered in the right conferred to assess the damages arising from a breach of conditions. The power to assess damages, as pointed out by the Full Bench, is a subsidiary and consequential power and not the primary power. Even assuming for arguments sake that the terms of clause 12 afford scope for being construed as empowering the officer of the State to decide upon the question of breach as well as assess the quantum of damages, we do not think that adjudication by the officer regarding the breach of the contract can be sustained under law because a party to the agreement cannot be an arbiter in his own cause. Interests of justice and equity require that where a party to a contract disputes the committing of any breach of conditions the adjudication should be by an independent person or body and not by the other party to the contract. The position will, however, be different where there is no dispute or there is consensus between the contracting parties regarding the breach of conditions. In such a case the officer of the State, even though a party to the contract will be well within his rights in assessing the damages occasioned by the breach in view of the specific terms of clause 12.? (emphasis supplied)13. Taking assistance of the judgment of this Court, the full Bench of the Madhya Pradesh High Court also in the case reported in B.B. Verma and another(supra) observed that the Government or its officers were not justified to initiate recovery proceedings which is disputed by the contractor as payable under the contract by the State Government pending decision of the Arbitral Tribunal constituted under the Adhiniyam, 1983. It goes without saying that when the contractor disputes the damages claimed by the Authority or any Officer in its behalf, such an amount cannot be said to be due under the contract and cannot be recovered as arrear of land revenue until adjudicated in the pending reference before the Arbitral Tribunal. 14. In Virendra Sharma Vs. State of Madhya Pradesh and Ors. (Civil Appeal No. 5169 of 2016 decided on 13th May, 2016), in the similar circumstances, this Court has considered the terms and conditions of the contract of which a reference has been made where the contract was terminated on the ground that the contractor could not complete the work within the stipulated period and the department suffered huge losses. When the demand was raised by the department that was challenged by the contractor invoking arbitration and pending adjudication, the recovery which was invoked by the respondents was not considered to be legally sustainable in law. The extract of the order is as under:-O R D E R ?Leave granted. Admitted facts are that the appellant was awarded a contract by the respondents. The contract was terminated on the ground that the appellant could not complete the work within the stipulated period. The Superintendent Engineer also arrived at a conclusion that because of the alleged breach of contract by the appellant, Department had suffered loss and the amount of such loss be returned. The appellant did not agree with the same and as per the procedure prescribed in the contract, invoked arbitration. Admittedly, the matter is before the Arbitrator and no adjudication has taken place. It has yet to determine as to whether the decision of the Superintendent Engineer that the Department has suffered the loss, is correct or not. In these circumstances, inasmuch as the amount becomes due and payable only after adjudication, we are of the view that the recovery of the said amount cannot be made invoking the procedure of Land Revenue Act. The recovery orders are, accordingly, set aside. It would, however, be open to the Department to take further steps only after the Award is rendered by the Arbitrator depending upon the outcome thereof. The appeal stands disposed of.?15. We are also of the considered view that once the dispute is pending adjudication before the Arbitral Tribunal constituted under the Adhiniyam, 1983 in terms of clause 25 of the agreement, the respondent, in the facts and circumstances, was not justified to raise demand on termination of contract claiming liquidated damages and the respondent cannot become an arbiter in its own cause and unless the dispute is settled by a procedure prescribed under the law, the respondents would not be held to be justified in initiating recovery proceedings invoking the procedure under the Land Revenue Act. 16. The submission of the learned counsel for the respondents that the liquidated damages were determined by the General Manager of the 1st respondent after adjudication in terms of clause 24 of the agreement and accordingly, the respondents were justified in initiating recovery proceedings is without substance for the reason that clause 24 of the agreement provides an inbuilt mechanism but the decision of the competent authority is to be examined invoking clause 25 for arbitration by the Arbitral Tribunal on a reference if made under Section 7 of the Adhiniyam, 1983. 17. Indisputedly, in the instant cases, the reference petition is pending before the Arbitral Tribunal in reference to the liquidated damages claimed by the respondents. As long as the dispute remained pending adjudication, it was not justified on the part of the respondents to initiate recovery proceedings invoking the procedure under the Land Revenue Act without awaiting the outcome of the arbitral proceedings. | 1[ds]9. It is not disputed that the termination of the agreement no. 11 and agreement no. 12 and consequential liquidated damages claimed by the respondents have been questioned by the appellant in reference petitions filed under Section 7 of the Adhiniyam, 1983 on 5th October, 2016 and 20th March 2017 respectively and both the references are pending adjudication before the Arbitral Tribunal where the dispute in reference to the claim of liquidated damages of the respondents is yet to the adjudicated.In terms of the clauses 44.1 read with 53.1 of the agreement, it emerges that if there are liquidated damages to be payable upon termination of contract by the contractor, inbuilt redressal system has been provided under Clause 24 which, in the instant cases, was invoked through the General Manager of the 1 st respondent and the party aggrieved thereof can certainly approach to the Arbitral Tribunal constituted under the Adhiniyam, 1983 in terms of clause 25 of the agreement.Indisputedly, in the instant cases, for both the two agreement nos. 11 and 12, the general manager of the 1 st respondent quantified the liquidated damages as alleged and that has been the subject matter of challenge raised by the appellant in the reference petitions filed before the Arbitral Tribunal under Section 7 of the Adhiniyam, 1983 which is still pending adjudication and once the remedial mechanism provided under the Adhiniyam, 1983 has been availed by the appellant which is pending adjudication, the respondents were not justified in initiating the recovery proceedings without awaiting the outcome of the arbitral proceedings. It is the settled principles of law that a party to an agreement cannot be an arbiter in his own cause.We are also of the considered view that once the dispute is pending adjudication before the Arbitral Tribunal constituted under the Adhiniyam, 1983 in terms of clause 25 of the agreement, the respondent, in the facts and circumstances, was not justified to raise demand on termination of contract claiming liquidated damages and the respondent cannot become an arbiter in its own cause and unless the dispute is settled by a procedure prescribed under the law, the respondents would not be held to be justified in initiating recovery proceedings invoking the procedure under the Land Revenue Act.The submission of the learned counsel for the respondents that the liquidated damages were determined by the General Manager of the 1st respondent after adjudication in terms of clause 24 of the agreement and accordingly, the respondents were justified in initiating recovery proceedings is without substance for the reason that clause 24 of the agreement provides an inbuilt mechanism but the decision of the competent authority is to be examined invoking clause 25 for arbitration by the Arbitral Tribunal on a reference if made under Section 7 of the Adhiniyam, 1983.Indisputedly, in the instant cases, the reference petition is pending before the Arbitral Tribunal in reference to the liquidated damages claimed by the respondents. As long as the dispute remained pending adjudication, it was not justified on the part of the respondents to initiate recovery proceedings invoking the procedure under the Land Revenue Act without awaiting the outcome of the arbitral proceedings. | 1 | 3,126 | 562 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
of the words it is clear that the right of the second party to assess damages would arise only if the breach of conditions is admitted or if no issue is made of it. If is was the intention of the parties that the officer acting on behalf of the State was also entitled to adjudicate upon a dispute regarding the breach of conditions the wording of clause 12 would have been entirely different. It cannot also be argued that a right to adjudicate upon an issue relating to a breach of conditions of the contract would flow from or is inhered in the right conferred to assess the damages arising from a breach of conditions. The power to assess damages, as pointed out by the Full Bench, is a subsidiary and consequential power and not the primary power. Even assuming for arguments sake that the terms of clause 12 afford scope for being construed as empowering the officer of the State to decide upon the question of breach as well as assess the quantum of damages, we do not think that adjudication by the officer regarding the breach of the contract can be sustained under law because a party to the agreement cannot be an arbiter in his own cause. Interests of justice and equity require that where a party to a contract disputes the committing of any breach of conditions the adjudication should be by an independent person or body and not by the other party to the contract. The position will, however, be different where there is no dispute or there is consensus between the contracting parties regarding the breach of conditions. In such a case the officer of the State, even though a party to the contract will be well within his rights in assessing the damages occasioned by the breach in view of the specific terms of clause 12.? (emphasis supplied)13. Taking assistance of the judgment of this Court, the full Bench of the Madhya Pradesh High Court also in the case reported in B.B. Verma and another(supra) observed that the Government or its officers were not justified to initiate recovery proceedings which is disputed by the contractor as payable under the contract by the State Government pending decision of the Arbitral Tribunal constituted under the Adhiniyam, 1983. It goes without saying that when the contractor disputes the damages claimed by the Authority or any Officer in its behalf, such an amount cannot be said to be due under the contract and cannot be recovered as arrear of land revenue until adjudicated in the pending reference before the Arbitral Tribunal. 14. In Virendra Sharma Vs. State of Madhya Pradesh and Ors. (Civil Appeal No. 5169 of 2016 decided on 13th May, 2016), in the similar circumstances, this Court has considered the terms and conditions of the contract of which a reference has been made where the contract was terminated on the ground that the contractor could not complete the work within the stipulated period and the department suffered huge losses. When the demand was raised by the department that was challenged by the contractor invoking arbitration and pending adjudication, the recovery which was invoked by the respondents was not considered to be legally sustainable in law. The extract of the order is as under:-O R D E R ?Leave granted. Admitted facts are that the appellant was awarded a contract by the respondents. The contract was terminated on the ground that the appellant could not complete the work within the stipulated period. The Superintendent Engineer also arrived at a conclusion that because of the alleged breach of contract by the appellant, Department had suffered loss and the amount of such loss be returned. The appellant did not agree with the same and as per the procedure prescribed in the contract, invoked arbitration. Admittedly, the matter is before the Arbitrator and no adjudication has taken place. It has yet to determine as to whether the decision of the Superintendent Engineer that the Department has suffered the loss, is correct or not. In these circumstances, inasmuch as the amount becomes due and payable only after adjudication, we are of the view that the recovery of the said amount cannot be made invoking the procedure of Land Revenue Act. The recovery orders are, accordingly, set aside. It would, however, be open to the Department to take further steps only after the Award is rendered by the Arbitrator depending upon the outcome thereof. The appeal stands disposed of.?15. We are also of the considered view that once the dispute is pending adjudication before the Arbitral Tribunal constituted under the Adhiniyam, 1983 in terms of clause 25 of the agreement, the respondent, in the facts and circumstances, was not justified to raise demand on termination of contract claiming liquidated damages and the respondent cannot become an arbiter in its own cause and unless the dispute is settled by a procedure prescribed under the law, the respondents would not be held to be justified in initiating recovery proceedings invoking the procedure under the Land Revenue Act. 16. The submission of the learned counsel for the respondents that the liquidated damages were determined by the General Manager of the 1st respondent after adjudication in terms of clause 24 of the agreement and accordingly, the respondents were justified in initiating recovery proceedings is without substance for the reason that clause 24 of the agreement provides an inbuilt mechanism but the decision of the competent authority is to be examined invoking clause 25 for arbitration by the Arbitral Tribunal on a reference if made under Section 7 of the Adhiniyam, 1983. 17. Indisputedly, in the instant cases, the reference petition is pending before the Arbitral Tribunal in reference to the liquidated damages claimed by the respondents. As long as the dispute remained pending adjudication, it was not justified on the part of the respondents to initiate recovery proceedings invoking the procedure under the Land Revenue Act without awaiting the outcome of the arbitral proceedings.
### Response:
1
### Explanation:
9. It is not disputed that the termination of the agreement no. 11 and agreement no. 12 and consequential liquidated damages claimed by the respondents have been questioned by the appellant in reference petitions filed under Section 7 of the Adhiniyam, 1983 on 5th October, 2016 and 20th March 2017 respectively and both the references are pending adjudication before the Arbitral Tribunal where the dispute in reference to the claim of liquidated damages of the respondents is yet to the adjudicated.In terms of the clauses 44.1 read with 53.1 of the agreement, it emerges that if there are liquidated damages to be payable upon termination of contract by the contractor, inbuilt redressal system has been provided under Clause 24 which, in the instant cases, was invoked through the General Manager of the 1 st respondent and the party aggrieved thereof can certainly approach to the Arbitral Tribunal constituted under the Adhiniyam, 1983 in terms of clause 25 of the agreement.Indisputedly, in the instant cases, for both the two agreement nos. 11 and 12, the general manager of the 1 st respondent quantified the liquidated damages as alleged and that has been the subject matter of challenge raised by the appellant in the reference petitions filed before the Arbitral Tribunal under Section 7 of the Adhiniyam, 1983 which is still pending adjudication and once the remedial mechanism provided under the Adhiniyam, 1983 has been availed by the appellant which is pending adjudication, the respondents were not justified in initiating the recovery proceedings without awaiting the outcome of the arbitral proceedings. It is the settled principles of law that a party to an agreement cannot be an arbiter in his own cause.We are also of the considered view that once the dispute is pending adjudication before the Arbitral Tribunal constituted under the Adhiniyam, 1983 in terms of clause 25 of the agreement, the respondent, in the facts and circumstances, was not justified to raise demand on termination of contract claiming liquidated damages and the respondent cannot become an arbiter in its own cause and unless the dispute is settled by a procedure prescribed under the law, the respondents would not be held to be justified in initiating recovery proceedings invoking the procedure under the Land Revenue Act.The submission of the learned counsel for the respondents that the liquidated damages were determined by the General Manager of the 1st respondent after adjudication in terms of clause 24 of the agreement and accordingly, the respondents were justified in initiating recovery proceedings is without substance for the reason that clause 24 of the agreement provides an inbuilt mechanism but the decision of the competent authority is to be examined invoking clause 25 for arbitration by the Arbitral Tribunal on a reference if made under Section 7 of the Adhiniyam, 1983.Indisputedly, in the instant cases, the reference petition is pending before the Arbitral Tribunal in reference to the liquidated damages claimed by the respondents. As long as the dispute remained pending adjudication, it was not justified on the part of the respondents to initiate recovery proceedings invoking the procedure under the Land Revenue Act without awaiting the outcome of the arbitral proceedings.
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Harisingh Pratapsingh Chawda Vs. Popatlal Mulshanker Joshi & Ors | with regard to the alleged visit of the Maulvi and the 1st respondent to the appellant three other possible witnesses including the appellants wife, Pushpaben who could have been examined to establish that the 1st respondent accompanied the Maulvi to th e appellant had not been examined. A further fact which improbabilises this story is that in the election petition it is stated that the 1st respondent told the appellant that he would arrange for a ticket for Madhusudansinh in the 1972 elections and pay him Rs. 10, 000/- if Madhusudansinh left organisation Congress and joined the Ruling Congress and voted and worked for him (1st respondent) and asked him to convey the offer to Madhusudansinh. No evidence was let in about the voting and what is more Madhusudansinh was not a voter in the Banaskantha Constituency. This shows that the allegation regarding the request to appellant to vote for 1st respondent is of the character as the request to Madhusudansinh and put in merely for the purposes of the election petition and not a fact. On broader considerations also it is very unlikely that when the talk was about the appellant and Madhusudansinh defecting to the Ruling Congress from the organisation Congress there would have been any talk about the voting itself. All parties would have proceeded on the understanding that when they defected to the Ruling Congress they would both work and vote for the Ruling Congress. The distinction between a gift or offer combined with the request to vote and the gift or offer to a person asking him to work for him with the incidental result that person might vote for him should always be kept in mind. In such a case there is no specific bargain for the vote. Were it not so it would be impossible for persons standing for election to get any person to work for them who is not also a voter in the constituency. This was brought out by this Court in the decision in onkar Singh v. Ghasiram Majhi (1). We would, therefore, hold that the case that 1st respondent bargained for the appellants vote has not been satisfactorily made out.On behalf of the 1st respondent it was urged that the actions of the appellant and Madhusudansinhji immediately after t he payment of Rs. 10,000/- and the dramatic developments at the meeting addressed by the Prime Minister show that there would not have been any bargaining for the appellants vote. The points relied upon were (1) that it was not said by the appellant when he threw the money into the crowd on the 18th that he was asked to vote for the 1st respondent, (2) that it was not mentioned in the statement (Ex. 5) made by the appellant and Madhusudansinhji on 18-2-1971, (3) that was not mention ed in the interview given to the newspaper reporters found in Ex. 7 or in the newspaper report Ex. 8. We do not consider that these things are of much importance. At that time the most important factor was the attempt to persuade the appellant and Madhusudansinhji to defect to the Ruling Congress and any request to the appellant to vote for the 1st respondent would have been insignificant even as we have held that when requesting the appellant and Madhusudansinhji to defect to the Ruling Congress it is not likely that they would have been asked to vote for the 1st respondent. The reference to the piece of evidence just mentioned cannot be said to establish that there was no request made to the appellant to vote for the 1st respondent. That would have to be decided on other factors and other evidence and on the basis of that evidence we have already held that it is not established that the 1st respondent requested the appellant to vote for him.5. Now remains the question of the offer to build a hostel for Kshatriya boys. Strictly speaking this does not arise on issue 10. This is probabilised by the evidence of Madhusudansinhji, Maulvi Abdul Rehman and the appellant as well as Ex. T. Whether it was to be in Danta or Banaskantha does not make much difference as long as it was for the Kshatriya boys. The two places are near to each other though in different Parliamentary constituencies and in whichever place it was situate it will benefit Kshatriya boys and there is no. doubt that if the hostel were constructed by respondent No. 1 or the Ruling Congress party at his instance that would induce the voters to vote for the Ruling Congress candidate. But before that happen s the matter should come to the knowledge of the voters. Only if the voters knew that the promise had been made to the appellant and Madhusudansinhji that promise would induce the voters to vote for 1st respondent. But the knowledge of the prormise remained confined to the appellant and P.W. 10, in addition of course to Maulvi Abdul Rehman and the 1st respondents son. If the payment or the promise was to induce the voters, it cannot induce the voters unless they come to know about the payment or the promise. There is no evidence her that the voters knew about the promise to build the hostel. The bargain in such cases as we have mentioned in the JUDGMENT delivered by us today in S. Iqbal Singh v. Gurdas Singh & Ors. is really an offer on the part of the bribe giver that he would do such a thing if the voters would vote for him. It is not necessary that the voters should have accepted it. But the voters should have a knowledge about the offer. Then only it would be a bargain. An offer contemplated and retained in the mind of the offerer and not articulated and made known to the offeree will not be a bargain. It therefore follows that in this case the offer to build a hostel does not also amount to bribery. | 0[ds]We are in entire agreement with the finding of the learned Judge as regards the payment of Rs. 10, 000/- to the appellant and also the offer to build hostel for Kshatriya students and do not consider it necessary to go into the evidence in support of that finding. That finding is supported not only by the evidence of Madnusudansinhji and Maulvi Abdur Rehman but also the letter Ex. T, passed by the latter to the appellant andis still another finding necessary in regard to the allegations made in the petition in respect of which the learned Judge has given no finding and that is with regard to what happen ed of the 9th of February 1971. We are at one with the view of the learned Judge that the payment of Rs. 10, 000/- to the appellant was with a view to induce him to defect from organisation Congress to the Ruling Congress. It may carry with it the implication that he was expected to use his influence with the voters to vote for the candidate set up by the Rulinghaving considered his arguments we are still of the opinion that the view taken in that decision is correct. The object of providing that a payment should not be made to a person in order that that payment should induce some other person to vote for the bribe giver is obvious. It is apparently intended to cover situations where payment to a husband, wife, son or father is intended to induce the wife, husband, father or son to vote for the bribe giver. That would be indirect inducement. otherwise it would be easy for the bribe giver to say that he did not bribe the voter himself and therefore it is not bribery. That this provision was not intended to cover a case where money is paid to a certain person in order to make him induce another person to vote for the person who paid him the money would be obvious by looking at the converse case. Under s. 123(1)(B)(b) the receipt of or agreement to receive, any gratification, whether as a motive o r a reward by any person whomsoever for himself or any other person for voting or refraining from voting or inducing or attempting to induce any elector to vote or refrain from voting, or any candidate to with draw or not to withdraw his candidature is bribery. Under this clause any person who receives or agrees to receive any gratification as a reward for inducing or attempting to induce any elector to vote etc. would be receiving a bribe. The law therefore contemplates that where a person makes any payment to another person in order to make him use his influence to induce a third person to vote for him that is not bribery by the person who pays but the receipt of money by the second person for inducing or attempting to induce another elector to vote is bribery. It is also bribery for the voter himself to receive the money. We, therefore, reiterate the view that when a candidate or anybody on his behalf pays any gratification to a person in order that the payment made to him may induce the voter to vote for the bribe giver it is bribery. But where the gratification is paid to a person in order that he may induce the other persons to vote for the bribe giver it is not bribery on the part of the bribe giver. It is, however, as we have explained above, bribery on the part of the bribe taker even when he takes it in order to induce an elector to vote for the bribe giver. In this case it is obvious that the primary object of the payment made to the appellant was to induce him to defect from the Organisation Congress to the Ruling Congress. That is not a corrupt practice under the Representation of the People Act. Even if the payment was received with the promise that he would induce the voters to vote for the bribe giver it will not be bribery on the part of the bribe giver but only bribery on the part the bribe taker. The defection of the appellant to the Ruling Congress, if it took place, might mean that he was expected to work for the Ruling Congress. Equally it may not. A person who changes his party allegiance at the time of the election probably might not command much respect among electors if the 1 electors knew that he had done so after receiving some money. Otherwise the fact that two important persons the appellant and Madhusudansinhji, a younger brother of the ex-ruler of Danta Stata had joined the Ruling Congress might be expected to influence the voters to vote for the candidate set up by the Ruling Congress. But that would be not because of the payment made to the appellant and Madhusudansinhji. Nor would such payment be bribery. To reiterate, it is the payment to the appellant that must induce the voters to vote for the candidate set up by the Ruling Congress in order that it might amount to bribery. It is not enough that his defection from organisation Congress to the Ruling Congress induces voters to vote for the Ruling Congress candidate. As we said earlier, if the payment to the appellant came to be known as the cause for his changing allegiance it may have a boomerang effect. It is therefore clear that the payment made to the appellant would not have induced the voters to vote for the Ruling Congress candidate. While after his defection therefore the appellant might have been expected to work for the Ruling Congress candidate or equally might not have been, it is perhaps implicit that he would also vote for the Ruling Congress candid ate. Is this enough to make the payment made to the appellant bribery? The payment was made not for the purpose of inducing him to vote but to make him defect to the Ruling Congress. That was the purpose for which the payment was made. That incidentally he might vote for the Ruling Congress candidate does mean that the payment was made to him in order to make him vote for the Ruling Congress candidate. The bargain was not for his vote, the bargain was for his defection. Therefore o n this point we agree with the learned Judge of the High Court. But if there was a specific request by the 1st respondent to the appellant that he should vote for him then the position would be different. In that case it would be bribery and even bribery to one person is enough to make an election void. A specific allegation to that effect has been made in the election petition and that has not been considered by the learned Judge of the Highbroader considerations also it is very unlikely that when the talk was about the appellant and Madhusudansinh defecting to the Ruling Congress from the organisation Congress there would have been any talk about the voting itself. All parties would have proceeded on the understanding that when they defected to the Ruling Congress they would both work and vote for the Ruling Congress. The distinction between a gift or offer combined with the request to vote and the gift or offer to a person asking him to work for him with the incidental result that person might vote for him should always be kept in mind. In such a case there is no specific bargain for the vote. Were it not so it would be impossible for persons standing for election to get any person to work for them who is not also a voter in the constituency. This was brought out by this Court in the decision in onkar Singh v. Ghasiram Majhi (1). We would, therefore, hold that the case that 1st respondent bargained for the appellants vote has not been satisfactorily madedo not consider that these things are of much importance. At that time the most important factor was the attempt to persuade the appellant and Madhusudansinhji to defect to the Ruling Congress and any request to the appellant to vote for the 1st respondent would have been insignificant even as we have held that when requesting the appellant and Madhusudansinhji to defect to the Ruling Congress it is not likely that they would have been asked to vote for the 1st respondent. The reference to the piece of evidence just mentioned cannot be said to establish that there was no request made to the appellant to vote for the 1st respondent. That would have to be decided on other factors and other evidence and on the basis of that evidence we have already held that it is not established that the 1st respondent requested the appellant to vote forspeaking this does not arise on issue 10. This is probabilised by the evidence of Madhusudansinhji, Maulvi Abdul Rehman and the appellant as well as Ex. T. Whether it was to be in Danta or Banaskantha does not make much difference as long as it was for the Kshatriya boys. The two places are near to each other though in different Parliamentary constituencies and in whichever place it was situate it will benefit Kshatriya boys and there is no. doubt that if the hostel were constructed by respondent No. 1 or the Ruling Congress party at his instance that would induce the voters to vote for the Ruling Congress candidate. But before that happen s the matter should come to the knowledge of the voters. Only if the voters knew that the promise had been made to the appellant and Madhusudansinhji that promise would induce the voters to vote for 1st respondent. But the knowledge of the prormise remained confined to the appellant and P.W. 10, in addition of course to Maulvi Abdul Rehman and the 1st respondents son. If the payment or the promise was to induce the voters, it cannot induce the voters unless they come to know about the payment or the promise. There is no evidence her that the voters knew about the promise to build the hostel. The bargain in such cases as we have mentioned in the JUDGMENT delivered by us today in S. Iqbal Singh v. Gurdas Singh & Ors. is really an offer on the part of the bribe giver that he would do such a thing if the voters would vote for him. It is not necessary that the voters should have accepted it. But the voters should have a knowledge about the offer. Then only it would be a bargain. An offer contemplated and retained in the mind of the offerer and not articulated and made known to the offeree will not be a bargain. It therefore follows that in this case the offer to build a hostel does not also amount to bribery. | 0 | 3,899 | 1,939 | ### 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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with regard to the alleged visit of the Maulvi and the 1st respondent to the appellant three other possible witnesses including the appellants wife, Pushpaben who could have been examined to establish that the 1st respondent accompanied the Maulvi to th e appellant had not been examined. A further fact which improbabilises this story is that in the election petition it is stated that the 1st respondent told the appellant that he would arrange for a ticket for Madhusudansinh in the 1972 elections and pay him Rs. 10, 000/- if Madhusudansinh left organisation Congress and joined the Ruling Congress and voted and worked for him (1st respondent) and asked him to convey the offer to Madhusudansinh. No evidence was let in about the voting and what is more Madhusudansinh was not a voter in the Banaskantha Constituency. This shows that the allegation regarding the request to appellant to vote for 1st respondent is of the character as the request to Madhusudansinh and put in merely for the purposes of the election petition and not a fact. On broader considerations also it is very unlikely that when the talk was about the appellant and Madhusudansinh defecting to the Ruling Congress from the organisation Congress there would have been any talk about the voting itself. All parties would have proceeded on the understanding that when they defected to the Ruling Congress they would both work and vote for the Ruling Congress. The distinction between a gift or offer combined with the request to vote and the gift or offer to a person asking him to work for him with the incidental result that person might vote for him should always be kept in mind. In such a case there is no specific bargain for the vote. Were it not so it would be impossible for persons standing for election to get any person to work for them who is not also a voter in the constituency. This was brought out by this Court in the decision in onkar Singh v. Ghasiram Majhi (1). We would, therefore, hold that the case that 1st respondent bargained for the appellants vote has not been satisfactorily made out.On behalf of the 1st respondent it was urged that the actions of the appellant and Madhusudansinhji immediately after t he payment of Rs. 10,000/- and the dramatic developments at the meeting addressed by the Prime Minister show that there would not have been any bargaining for the appellants vote. The points relied upon were (1) that it was not said by the appellant when he threw the money into the crowd on the 18th that he was asked to vote for the 1st respondent, (2) that it was not mentioned in the statement (Ex. 5) made by the appellant and Madhusudansinhji on 18-2-1971, (3) that was not mention ed in the interview given to the newspaper reporters found in Ex. 7 or in the newspaper report Ex. 8. We do not consider that these things are of much importance. At that time the most important factor was the attempt to persuade the appellant and Madhusudansinhji to defect to the Ruling Congress and any request to the appellant to vote for the 1st respondent would have been insignificant even as we have held that when requesting the appellant and Madhusudansinhji to defect to the Ruling Congress it is not likely that they would have been asked to vote for the 1st respondent. The reference to the piece of evidence just mentioned cannot be said to establish that there was no request made to the appellant to vote for the 1st respondent. That would have to be decided on other factors and other evidence and on the basis of that evidence we have already held that it is not established that the 1st respondent requested the appellant to vote for him.5. Now remains the question of the offer to build a hostel for Kshatriya boys. Strictly speaking this does not arise on issue 10. This is probabilised by the evidence of Madhusudansinhji, Maulvi Abdul Rehman and the appellant as well as Ex. T. Whether it was to be in Danta or Banaskantha does not make much difference as long as it was for the Kshatriya boys. The two places are near to each other though in different Parliamentary constituencies and in whichever place it was situate it will benefit Kshatriya boys and there is no. doubt that if the hostel were constructed by respondent No. 1 or the Ruling Congress party at his instance that would induce the voters to vote for the Ruling Congress candidate. But before that happen s the matter should come to the knowledge of the voters. Only if the voters knew that the promise had been made to the appellant and Madhusudansinhji that promise would induce the voters to vote for 1st respondent. But the knowledge of the prormise remained confined to the appellant and P.W. 10, in addition of course to Maulvi Abdul Rehman and the 1st respondents son. If the payment or the promise was to induce the voters, it cannot induce the voters unless they come to know about the payment or the promise. There is no evidence her that the voters knew about the promise to build the hostel. The bargain in such cases as we have mentioned in the JUDGMENT delivered by us today in S. Iqbal Singh v. Gurdas Singh & Ors. is really an offer on the part of the bribe giver that he would do such a thing if the voters would vote for him. It is not necessary that the voters should have accepted it. But the voters should have a knowledge about the offer. Then only it would be a bargain. An offer contemplated and retained in the mind of the offerer and not articulated and made known to the offeree will not be a bargain. It therefore follows that in this case the offer to build a hostel does not also amount to bribery.
### Response:
0
### Explanation:
Nor would such payment be bribery. To reiterate, it is the payment to the appellant that must induce the voters to vote for the candidate set up by the Ruling Congress in order that it might amount to bribery. It is not enough that his defection from organisation Congress to the Ruling Congress induces voters to vote for the Ruling Congress candidate. As we said earlier, if the payment to the appellant came to be known as the cause for his changing allegiance it may have a boomerang effect. It is therefore clear that the payment made to the appellant would not have induced the voters to vote for the Ruling Congress candidate. While after his defection therefore the appellant might have been expected to work for the Ruling Congress candidate or equally might not have been, it is perhaps implicit that he would also vote for the Ruling Congress candid ate. Is this enough to make the payment made to the appellant bribery? The payment was made not for the purpose of inducing him to vote but to make him defect to the Ruling Congress. That was the purpose for which the payment was made. That incidentally he might vote for the Ruling Congress candidate does mean that the payment was made to him in order to make him vote for the Ruling Congress candidate. The bargain was not for his vote, the bargain was for his defection. Therefore o n this point we agree with the learned Judge of the High Court. But if there was a specific request by the 1st respondent to the appellant that he should vote for him then the position would be different. In that case it would be bribery and even bribery to one person is enough to make an election void. A specific allegation to that effect has been made in the election petition and that has not been considered by the learned Judge of the Highbroader considerations also it is very unlikely that when the talk was about the appellant and Madhusudansinh defecting to the Ruling Congress from the organisation Congress there would have been any talk about the voting itself. All parties would have proceeded on the understanding that when they defected to the Ruling Congress they would both work and vote for the Ruling Congress. The distinction between a gift or offer combined with the request to vote and the gift or offer to a person asking him to work for him with the incidental result that person might vote for him should always be kept in mind. In such a case there is no specific bargain for the vote. Were it not so it would be impossible for persons standing for election to get any person to work for them who is not also a voter in the constituency. This was brought out by this Court in the decision in onkar Singh v. Ghasiram Majhi (1). We would, therefore, hold that the case that 1st respondent bargained for the appellants vote has not been satisfactorily madedo not consider that these things are of much importance. At that time the most important factor was the attempt to persuade the appellant and Madhusudansinhji to defect to the Ruling Congress and any request to the appellant to vote for the 1st respondent would have been insignificant even as we have held that when requesting the appellant and Madhusudansinhji to defect to the Ruling Congress it is not likely that they would have been asked to vote for the 1st respondent. The reference to the piece of evidence just mentioned cannot be said to establish that there was no request made to the appellant to vote for the 1st respondent. That would have to be decided on other factors and other evidence and on the basis of that evidence we have already held that it is not established that the 1st respondent requested the appellant to vote forspeaking this does not arise on issue 10. This is probabilised by the evidence of Madhusudansinhji, Maulvi Abdul Rehman and the appellant as well as Ex. T. Whether it was to be in Danta or Banaskantha does not make much difference as long as it was for the Kshatriya boys. The two places are near to each other though in different Parliamentary constituencies and in whichever place it was situate it will benefit Kshatriya boys and there is no. doubt that if the hostel were constructed by respondent No. 1 or the Ruling Congress party at his instance that would induce the voters to vote for the Ruling Congress candidate. But before that happen s the matter should come to the knowledge of the voters. Only if the voters knew that the promise had been made to the appellant and Madhusudansinhji that promise would induce the voters to vote for 1st respondent. But the knowledge of the prormise remained confined to the appellant and P.W. 10, in addition of course to Maulvi Abdul Rehman and the 1st respondents son. If the payment or the promise was to induce the voters, it cannot induce the voters unless they come to know about the payment or the promise. There is no evidence her that the voters knew about the promise to build the hostel. The bargain in such cases as we have mentioned in the JUDGMENT delivered by us today in S. Iqbal Singh v. Gurdas Singh & Ors. is really an offer on the part of the bribe giver that he would do such a thing if the voters would vote for him. It is not necessary that the voters should have accepted it. But the voters should have a knowledge about the offer. Then only it would be a bargain. An offer contemplated and retained in the mind of the offerer and not articulated and made known to the offeree will not be a bargain. It therefore follows that in this case the offer to build a hostel does not also amount to bribery.
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Mukhtiar Singh (Since Deceased) Through His L.R Vs. State of Punjab | the money, on which, the latter handed over three currency notes denomination of Rs. 500 and five currency notes of Rs. 100 each to him and that he kept the same in a card board box lying near him. The witness stated that he then gave a signal to the other members of the raiding party including the D.S.P. (Vigilance) who entered the room and undertook the steps pertaining to recovery and seizure as narrated by the complainant.21. In cross-examination, this witness did not refer to the quarter of the original accused in the building of the police station and stated that both he and the complainant met him in his room in the police station. He however confirmed that the card board box was lying on the table of the accused which was not seized by the police. He denied the suggestion that he was not a member of the raiding party and that he had signed the memo while sitting in his office.22. Aman Kumar Mani (PW3) is a witness to the steps taken by the raiding party after it had entered the room in response to the signal given by the shadow witness. According to him, on being enquired, the original accused took out the currency notes of Rs. 2,000/- from the box lying in his room and that the same tallied with those set out in the memo prepared by the police. He proved as well the currency notes as Ex.P1 to P8.23. Superintendent of Police, Paramjit Singh Khaira (PW5), deposed that he was posted as DSP (Vigilance) FS-I, Unit-2, Punjab, Chandigarh on 01.06.2005. He stated that on that day, he recorded the statement of the complainant pertaining to the demand of illegal gratification made by the original accused. He thereafter constituted a trap team as above and treated currency notes totalling Rs. 2,000/- for the exercise and led the party to the Ajnala Police Station. The witness affirmed that Inspector Satpal was nominated as the shadow witness to accompany the complainant to witness the actual transaction and track the accompanying conversation and to give signal to the trap team at the appropriate point of time. This witness however stated in categorical terms that the complainant and the shadow witness went to the house of the original accused whereas the other members of the trap team waited outside and when Inspector Satpal flagged his signal, the house of the accused situated near Ajnala Police Station was raided. He stated that the police party intercepted the accused and on being asked, he took out the currency notes of Rs. 2,000/- from the card board box placed on the nearby table which tallied with those mentioned in the pre-trap, prepared memo and seized the currency notes. That the fingers of the original accused were dipped in the liquid compound, which turned pink was also stated.24. In cross-examination, this witness admitted that Mr. Mukhwinder Singh Cheena was at the relevant time posted as Superintendent of Police, Mohali and that he was his in-charge, then. To the suggestions made, the witness stated that he had no knowledge that the complainant was related to Mukhwinder Singh Cheena and that the latter had been pressurising the original accused not to pursue the case against the complainant. He also denied the suggestion that the Mr. Cheena was the brain behind the raid and the registration of the case against the original accused.25. It would thus be patent from the materials on record that the evidence with regard to the demand of illegal gratification either of Rs. 3,000/- which had been paid or of Rs. 2,000/- as made on the day of trap operation is wholly inadequate to comply with the pre-requisites to constitute the ingredients of the offence with which the original accused had been charged. Not only the date or time of first demand/payment is not forthcoming and the allegation to that effect is rather omnibus, vague and sweeping, even the person in whose presence Rs. 3,000/- at the first instance is alleged to have been paid i.e. Santosh Singh Lamberdar, has neither been produced in the investigation nor at the trial. In other words, the bald allegation of the complainant with regard to the demand and payment of Rs. 3,000/- as well as the demand of Rs. 2,000/- has remained uncorroborated. Further to reiterate, his statement to this effect lacks in material facts and particulars and per se cannot form the foundation of a decisive conclusion that such demand in fact had been made by the original accused. Viewed in this perspective, the statement of complainant and the Inspector Satpal, the shadow witness in isolation that the original accused had enquired as to whether money had been brought or not, can by no means constitute demand as enjoined in law as an ingredient of the offence levelled against the original accused. Such a stray query ipso facto in absence of any other cogent and persuasive evidence on record cannot amount to a demand to be a constituent of the offence under Section 7 or 13 of the Act.26. In addition thereto, not only the prosecution version of demand and acceptance of illegal gratification in the police station seems to be unusual, contradictions of the witnesses, PW-1, PW-2 and PW-5 with regard to the location of the transaction relating to Rs. 2,000/- also renders it doubtful. It is also noticeably unusual that the currency notes when allegedly handed over by the complainant to the original accused, the same instead of being keenly kept with him, were placed casually in the card board box placed on his table. Though the original accused, apart from imputing his false implication at the instance of Superintendent of Police Cheena, said to be the relative of the complainant could not adduce any evidence to consolidate the same, the fact remains that this officer at the relevant point of time was indeed Superintendent of Police at Mohali and was the superior of PW5 who led the trap operation. | 0[ds]16. The textual facts in Somabhai Gopalbhai Patel (supra) and Mukhtiar Singh (supra) and the quality of evidence adduced by the prosecution are clearly distinguishable and are thus of no avail to the prosecution as would be discernible from the analysis of the materials on record.17. It is in the above adumbrated legal enjoinment, that the evidence on record has to be scrutinised. Having regard to the gravamen of the charge and the imperatives of demand of illegal gratification, the receipt and recovery thereof, the evidence on record relatable thereto only need be noticed.18. Sarabjit Singh (PW1), the complainant stated that on 01.06.2005, he was posted with Traffic Police at Moga and that at the instance of his wife, a case under Section 498A IPC had been registered against him in Ajnala Police Station. He stated that the original accused, who was aof Ajnala Police Station was conducting the investigation of the case, agreed to allow him to participate in the investigation on payment of Rs.which was accordingly paid. The witness alleged that the original accused made a further demand of Rs.whereafter negotiation was scaled down to Rs.so as to favour the complainant in the case, with the threat that if the demand was not met, he would see that he is harassed in connection therewith. According to this witness, he being disinclined to advance further illegal gratification, lodged a complaint with DSP Paramjit Singh Khaira, who recorded his statement and requisitioned from him currency notes of Rs. 2,000/comprised of three notes of Rs. 500 and five notes of Rs. 100 each, treated those with phenolphthalein powder and constituted a trap team with Inspector Satpal as shadow witness and Aman Kumar Mani and Shashi Kant. The witness further stated that the police party thereafter visited Ajnala Police Station and he and Inspector Satpal met the original accused in his room and on being asked as to whether the money had been brought or not, he handed over Rs. 2,000/as prepared to the original accused, who received the same and after counting the money kept in a card board box. At this, the shadow witness signalled the waiting members of the raiding party along with the DSP Paramjit Singh Khaira, who entered the room, intercepted the original accused and recovered the currency notes on being handed over by him on demand. The witness also stated about the exercise undertaken by dipping the hands of the original accused in the liquid compound prepared, which turned pink to indicate that he had handled the currency notes treated with phenolphthalein. The witness also proved the currency notes as Ex. P1 to P8.19. In histhe complainant admitted that M.S. Cheena, the then Superintendent of Police, Vigilance was posted as S.S.P, Moga but denied that he was related to him. He could not recall the date on which he had paid Rs. 3,000/for the first time to the original accused and admitted of not having made any complaint in connection therewith. He conceded that one Santosh Singh Lamberdar of his village was with him when he paid this amount but the said person had not been produced as a witness either in the investigation or at the trial. He admitted as well that the card board box containing the money was not seized. He however denied the suggestion that he had been pressurising the original accused to conclude the investigation in his favour and that he had implicated him falsely. He also denied the suggestion that there was neither any demand for illegal gratification by the accused nor was any sum as alleged accepted by or recovered from him.20. Inspector Satpal (PW2), who was the shadow witness, after reiterating the statement of the complainant with regard to theproceedings, stated that he along with the complainant on that day met the original accused and followed to his quarter in the building of the police station whereafter the original accused enquired of the complainant as to whether he had brought the money, on which, the latter handed over three currency notes denomination of Rs. 500 and five currency notes of Rs. 100 each to him and that he kept the same in a card board box lying near him. The witness stated that he then gave a signal to the other members of the raiding party including the D.S.P. (Vigilance) who entered the room and undertook the steps pertaining to recovery and seizure as narrated by the complainant.21. Inthis witness did not refer to the quarter of the original accused in the building of the police station and stated that both he and the complainant met him in his room in the police station. He however confirmed that the card board box was lying on the table of the accused which was not seized by the police. He denied the suggestion that he was not a member of the raiding party and that he had signed the memo while sitting in his office.22. Aman Kumar Mani (PW3) is a witness to the steps taken by the raiding party after it had entered the room in response to the signal given by the shadow witness. According to him, on being enquired, the original accused took out the currency notes of Rs. 2,000/from the box lying in his room and that the same tallied with those set out in the memo prepared by the police. He proved as well the currency notes as Ex.P1 to P8.23. Superintendent of Police, Paramjit Singh Khaira (PW5), deposed that he was posted as DSP (Vigilance), Punjab, Chandigarh on 01.06.2005. He stated that on that day, he recorded the statement of the complainant pertaining to the demand of illegal gratification made by the original accused. He thereafter constituted a trap team as above and treated currency notes totalling Rs. 2,000/for the exercise and led the party to the Ajnala Police Station. The witness affirmed that Inspector Satpal was nominated as the shadow witness to accompany the complainant to witness the actual transaction and track the accompanying conversation and to give signal to the trap team at the appropriate point of time. This witness however stated in categorical terms that the complainant and the shadow witness went to the house of the original accused whereas the other members of the trap team waited outside and when Inspector Satpal flagged his signal, the house of the accused situated near Ajnala Police Station was raided. He stated that the police party intercepted the accused and on being asked, he took out the currency notes of Rs. 2,000/from the card board box placed on the nearby table which tallied with those mentioned in theprepared memo and seized the currency notes. That the fingers of the original accused were dipped in the liquid compound, which turned pink was also stated.24. Inthis witness admitted that Mr. Mukhwinder Singh Cheena was at the relevant time posted as Superintendent of Police, Mohali and that he was histhen. To the suggestions made, the witness stated that he had no knowledge that the complainant was related to Mukhwinder Singh Cheena and that the latter had been pressurising the original accused not to pursue the case against the complainant. He also denied the suggestion that the Mr. Cheena was the brain behind the raid and the registration of the case against the original accused.25. It would thus be patent from the materials on record that the evidence with regard to the demand of illegal gratification either of Rs. 3,000/which had been paid or of Rs. 2,000/as made on the day of trap operation is wholly inadequate to comply with theto constitute the ingredients of the offence with which the original accused had been charged. Not only the date or time of first demand/payment is not forthcoming and the allegation to that effect is rather omnibus, vague and sweeping, even the person in whose presence Rs. 3,000/at the first instance is alleged to have been paid i.e. Santosh Singh Lamberdar, has neither been produced in the investigation nor at the trial. In other words, the bald allegation of the complainant with regard to the demand and payment of Rs. 3,000/as well as the demand of Rs. 2,000/has remained uncorroborated. Further to reiterate, his statement to this effect lacks in material facts and particulars and per se cannot form the foundation of a decisive conclusion that such demand in fact had been made by the original accused. Viewed in this perspective, the statement of complainant and the Inspector Satpal, the shadow witness in isolation that the original accused had enquired as to whether money had been brought or not, can by no means constitute demand as enjoined in law as an ingredient of the offence levelled against the original accused. Such a stray query ipso facto in absence of any other cogent and persuasive evidence on record cannot amount to a demand to be a constituent of the offence under Section 7 or 13 of the Act.26. In addition thereto, not only the prosecution version of demand and acceptance of illegal gratification in the police station seems to be unusual, contradictions of the witnesses,with regard to the location of the transaction relating to Rs. 2,000/also renders it doubtful. It is also noticeably unusual that the currency notes when allegedly handed over by the complainant to the original accused, the same instead of being keenly kept with him, were placed casually in the card board box placed on his table. Though the original accused, apart from imputing his false implication at the instance of Superintendent of Police Cheena, said to be the relative of the complainant could not adduce any evidence to consolidate the same, the fact remains that this officer at the relevant point of time was indeed Superintendent of Police at Mohali and was the superior of PW5 who led the trap operation. | 0 | 4,247 | 1,780 | ### 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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the money, on which, the latter handed over three currency notes denomination of Rs. 500 and five currency notes of Rs. 100 each to him and that he kept the same in a card board box lying near him. The witness stated that he then gave a signal to the other members of the raiding party including the D.S.P. (Vigilance) who entered the room and undertook the steps pertaining to recovery and seizure as narrated by the complainant.21. In cross-examination, this witness did not refer to the quarter of the original accused in the building of the police station and stated that both he and the complainant met him in his room in the police station. He however confirmed that the card board box was lying on the table of the accused which was not seized by the police. He denied the suggestion that he was not a member of the raiding party and that he had signed the memo while sitting in his office.22. Aman Kumar Mani (PW3) is a witness to the steps taken by the raiding party after it had entered the room in response to the signal given by the shadow witness. According to him, on being enquired, the original accused took out the currency notes of Rs. 2,000/- from the box lying in his room and that the same tallied with those set out in the memo prepared by the police. He proved as well the currency notes as Ex.P1 to P8.23. Superintendent of Police, Paramjit Singh Khaira (PW5), deposed that he was posted as DSP (Vigilance) FS-I, Unit-2, Punjab, Chandigarh on 01.06.2005. He stated that on that day, he recorded the statement of the complainant pertaining to the demand of illegal gratification made by the original accused. He thereafter constituted a trap team as above and treated currency notes totalling Rs. 2,000/- for the exercise and led the party to the Ajnala Police Station. The witness affirmed that Inspector Satpal was nominated as the shadow witness to accompany the complainant to witness the actual transaction and track the accompanying conversation and to give signal to the trap team at the appropriate point of time. This witness however stated in categorical terms that the complainant and the shadow witness went to the house of the original accused whereas the other members of the trap team waited outside and when Inspector Satpal flagged his signal, the house of the accused situated near Ajnala Police Station was raided. He stated that the police party intercepted the accused and on being asked, he took out the currency notes of Rs. 2,000/- from the card board box placed on the nearby table which tallied with those mentioned in the pre-trap, prepared memo and seized the currency notes. That the fingers of the original accused were dipped in the liquid compound, which turned pink was also stated.24. In cross-examination, this witness admitted that Mr. Mukhwinder Singh Cheena was at the relevant time posted as Superintendent of Police, Mohali and that he was his in-charge, then. To the suggestions made, the witness stated that he had no knowledge that the complainant was related to Mukhwinder Singh Cheena and that the latter had been pressurising the original accused not to pursue the case against the complainant. He also denied the suggestion that the Mr. Cheena was the brain behind the raid and the registration of the case against the original accused.25. It would thus be patent from the materials on record that the evidence with regard to the demand of illegal gratification either of Rs. 3,000/- which had been paid or of Rs. 2,000/- as made on the day of trap operation is wholly inadequate to comply with the pre-requisites to constitute the ingredients of the offence with which the original accused had been charged. Not only the date or time of first demand/payment is not forthcoming and the allegation to that effect is rather omnibus, vague and sweeping, even the person in whose presence Rs. 3,000/- at the first instance is alleged to have been paid i.e. Santosh Singh Lamberdar, has neither been produced in the investigation nor at the trial. In other words, the bald allegation of the complainant with regard to the demand and payment of Rs. 3,000/- as well as the demand of Rs. 2,000/- has remained uncorroborated. Further to reiterate, his statement to this effect lacks in material facts and particulars and per se cannot form the foundation of a decisive conclusion that such demand in fact had been made by the original accused. Viewed in this perspective, the statement of complainant and the Inspector Satpal, the shadow witness in isolation that the original accused had enquired as to whether money had been brought or not, can by no means constitute demand as enjoined in law as an ingredient of the offence levelled against the original accused. Such a stray query ipso facto in absence of any other cogent and persuasive evidence on record cannot amount to a demand to be a constituent of the offence under Section 7 or 13 of the Act.26. In addition thereto, not only the prosecution version of demand and acceptance of illegal gratification in the police station seems to be unusual, contradictions of the witnesses, PW-1, PW-2 and PW-5 with regard to the location of the transaction relating to Rs. 2,000/- also renders it doubtful. It is also noticeably unusual that the currency notes when allegedly handed over by the complainant to the original accused, the same instead of being keenly kept with him, were placed casually in the card board box placed on his table. Though the original accused, apart from imputing his false implication at the instance of Superintendent of Police Cheena, said to be the relative of the complainant could not adduce any evidence to consolidate the same, the fact remains that this officer at the relevant point of time was indeed Superintendent of Police at Mohali and was the superior of PW5 who led the trap operation.
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and followed to his quarter in the building of the police station whereafter the original accused enquired of the complainant as to whether he had brought the money, on which, the latter handed over three currency notes denomination of Rs. 500 and five currency notes of Rs. 100 each to him and that he kept the same in a card board box lying near him. The witness stated that he then gave a signal to the other members of the raiding party including the D.S.P. (Vigilance) who entered the room and undertook the steps pertaining to recovery and seizure as narrated by the complainant.21. Inthis witness did not refer to the quarter of the original accused in the building of the police station and stated that both he and the complainant met him in his room in the police station. He however confirmed that the card board box was lying on the table of the accused which was not seized by the police. He denied the suggestion that he was not a member of the raiding party and that he had signed the memo while sitting in his office.22. Aman Kumar Mani (PW3) is a witness to the steps taken by the raiding party after it had entered the room in response to the signal given by the shadow witness. According to him, on being enquired, the original accused took out the currency notes of Rs. 2,000/from the box lying in his room and that the same tallied with those set out in the memo prepared by the police. He proved as well the currency notes as Ex.P1 to P8.23. Superintendent of Police, Paramjit Singh Khaira (PW5), deposed that he was posted as DSP (Vigilance), Punjab, Chandigarh on 01.06.2005. He stated that on that day, he recorded the statement of the complainant pertaining to the demand of illegal gratification made by the original accused. He thereafter constituted a trap team as above and treated currency notes totalling Rs. 2,000/for the exercise and led the party to the Ajnala Police Station. The witness affirmed that Inspector Satpal was nominated as the shadow witness to accompany the complainant to witness the actual transaction and track the accompanying conversation and to give signal to the trap team at the appropriate point of time. This witness however stated in categorical terms that the complainant and the shadow witness went to the house of the original accused whereas the other members of the trap team waited outside and when Inspector Satpal flagged his signal, the house of the accused situated near Ajnala Police Station was raided. He stated that the police party intercepted the accused and on being asked, he took out the currency notes of Rs. 2,000/from the card board box placed on the nearby table which tallied with those mentioned in theprepared memo and seized the currency notes. That the fingers of the original accused were dipped in the liquid compound, which turned pink was also stated.24. Inthis witness admitted that Mr. Mukhwinder Singh Cheena was at the relevant time posted as Superintendent of Police, Mohali and that he was histhen. To the suggestions made, the witness stated that he had no knowledge that the complainant was related to Mukhwinder Singh Cheena and that the latter had been pressurising the original accused not to pursue the case against the complainant. He also denied the suggestion that the Mr. Cheena was the brain behind the raid and the registration of the case against the original accused.25. It would thus be patent from the materials on record that the evidence with regard to the demand of illegal gratification either of Rs. 3,000/which had been paid or of Rs. 2,000/as made on the day of trap operation is wholly inadequate to comply with theto constitute the ingredients of the offence with which the original accused had been charged. Not only the date or time of first demand/payment is not forthcoming and the allegation to that effect is rather omnibus, vague and sweeping, even the person in whose presence Rs. 3,000/at the first instance is alleged to have been paid i.e. Santosh Singh Lamberdar, has neither been produced in the investigation nor at the trial. In other words, the bald allegation of the complainant with regard to the demand and payment of Rs. 3,000/as well as the demand of Rs. 2,000/has remained uncorroborated. Further to reiterate, his statement to this effect lacks in material facts and particulars and per se cannot form the foundation of a decisive conclusion that such demand in fact had been made by the original accused. Viewed in this perspective, the statement of complainant and the Inspector Satpal, the shadow witness in isolation that the original accused had enquired as to whether money had been brought or not, can by no means constitute demand as enjoined in law as an ingredient of the offence levelled against the original accused. Such a stray query ipso facto in absence of any other cogent and persuasive evidence on record cannot amount to a demand to be a constituent of the offence under Section 7 or 13 of the Act.26. In addition thereto, not only the prosecution version of demand and acceptance of illegal gratification in the police station seems to be unusual, contradictions of the witnesses,with regard to the location of the transaction relating to Rs. 2,000/also renders it doubtful. It is also noticeably unusual that the currency notes when allegedly handed over by the complainant to the original accused, the same instead of being keenly kept with him, were placed casually in the card board box placed on his table. Though the original accused, apart from imputing his false implication at the instance of Superintendent of Police Cheena, said to be the relative of the complainant could not adduce any evidence to consolidate the same, the fact remains that this officer at the relevant point of time was indeed Superintendent of Police at Mohali and was the superior of PW5 who led the trap operation.
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Avinash Sadashiv Bhosale (D) Thr. Lrs Vs. U.O.I. | simultaneously to the criminal trial in the case of Divisional Controller, Karnataka State Road Transport Corporation Vs. M.G.Vittal Rao (supra). In this case, making reference to almost all the previous precedents, this Court has reiterated the legal position as follows:- (a) There is no legal bar for both proceedings to go on simultaneously. (b) The only valid ground for claiming that the disciplinary proceedings may be stayed would be to ensure that the defence of the employee in the criminal case may not be prejudiced. But even such grounds would be available only in cases involving complex questions of facts and law. (c) Such defence ought not to be permitted to unnecessarily delay the departmental proceedings. The interest of the delinquent officer as well as the employer clearly lies in a prompt conclusion of the disciplinary proceedings. (d) Departmental proceedings can go on simultaneously to the criminal trial, except where both the proceedings are based on the same set of facts and the evidence in both the proceedings is common. In our opinion, the principles culled out by this Court would be a complete answer to all the submissions made by Mr. Jain. 45. In view of the aforesaid legal principles enunciated and reiterated by this Court, we cannot accept that because the appellant had been prosecuted, the departmental proceedings could not have been continued simultaneously. As pointed out by Mr. Dwivedi, the charges against the appellant in the criminal trial related to the commission of criminal offences under Sections 120(B), 420, 467, 468, 471 and 201 of Indian Penal Code. The proof of criminal charges was depended upon prosecution producing proof beyond reasonable doubt relating to the culpability of the appellant alongwith other persons. In the departmental proceedings, the basic charge was that appellant whilst posted as a Branch Manager of Washi Turbhe Branch, failed to discharge his duties with utmost integrity, honesty, devotion and diligence to ensure and protect the interest of the Bank and acted in a manner unbecoming of a Bank Officer. The aforesaid charge clearly related to the manner in which the appellant performed the duties as the Manager of the Branch of the Bank. It had nothing to do with any criminal liability attaching to such conduct. It must be emphasised that Bank officials act as trustees of funds deposited by the public with the Bank. They have an obligation to earn the trust and confidence of not only the account holders but also the general public. The standard of integrity required of the Bank officials, particularly the cashiers, accountants, auditors and the Management at all levels, is like the Caesar’s wife, they must be above suspicion. Mr.Bhosale failed to maintain such high standards of integrity. He therefore, acted in violation of Rule 50(4) of the 1992 Rules. We, therefore, do not find any merit in the aforesaid submissions of Mr. Jain. 46. Mr. Dwivedi, in our opinion, has rightly pointed out that the conduct of the criminal trial was in the hands of the prosecuting agency. Having registered the First Information Report, the Bank had little or no role to play, apart from rendering assistance to the prosecuting agencies. In our opinion, the failure of the prosecution in producing the necessary evidence before the trial court can not have any adverse impact on the evidentiary value of the material produced by the Bank before the Inquiry Officer in the departmental proceedings. Before the Inquiry Officer, the Bank had placed on the record all the relevant documents which clearly establish that the appellant had exceeded his discretionary powers in purchasing the cheques and issuing demand drafts to show undue favour to the three construction companies named in the charge sheet. In view of the above, the findings recorded by the Inquiry Officer can not be said to be based on no evidence. It is a settled proposition of law that the findings of Inquiry Officer cannot be nullified so long as there is some relevant evidence in support of the conclusions recorded by the Inquiry Officer. In the present case, all the relevant documents were produced in the Inquiry to establish the charges levelled against the appellant. It is a matter of record that the appellant did not doubt the authenticity of the documents produced by the Bank. He merely stated that the signature on the documents were not his. The aforesaid statement of the appellant was nullified by Mr. S.M. Mahadik, who appeared as a witness for the Bank. He clearly stated that he recognized the signature of the appellant as he had been working as his subordinate. 47. The findings recorded by the Enquiry Officer cannot be said to be based on no evidence. In such circumstances, the appellant cannot take any advantage of the findings of innocence recorded by the criminal court. The ‘clean chit’ given by the learned Magistrate was influenced by the failure of the prosecution to lead the necessary evidence. No advantage of the same can be taken by the appellant in the departmental proceedings.48. We also do not find any merit in the submissions made by Mr. Jain that the order by the Disciplinary Authority is vitiated by non- application of mind. The extracts reproduced above would clearly indicate that the Disciplinary Authority was alive to all the submissions made by the appellant. The Disciplinary Authority had taken into consideration all the relevant material and only then concluded that the charges have been duly proved against the appellant. Furthermore, it is a matter of record that the appellant was duly supplied a copy of the Inquiry Report and he had submitted detailed objections to the same. These objections were placed before the Disciplinary Authority together with the Inquiry Report. Therefore, the appellant can not possibly claim that there has been a breach of rule of natural justice.49. Similarly, the Appellate Authority has also given cogent reasons in support of its conclusion. This is also apparent from the extract of the order of the Appellate Authority reproduced above. | 0[ds]47. The findings recorded by the Enquiry Officer cannot be said to be based on no evidence. In such circumstances, the appellant cannot take any advantage of the findings of innocence recorded by the criminal court. The ‘cleangiven by the learned Magistrate was influenced by the failure of the prosecution to lead the necessary evidence. No advantage of the same can be taken by the appellant in the departmental proceedings.48. We also do not find any merit in the submissions made by Mr. Jain that the order by the Disciplinary Authority is vitiated by non- application of mind. The extracts reproduced above would clearly indicate that the Disciplinary Authority was alive to all the submissions made by the appellant. The Disciplinary Authority had taken into consideration all the relevant material and only then concluded that the charges have been duly proved against the appellant. Furthermore, it is a matter of record that the appellant was duly supplied a copy of the Inquiry Report and he had submitted detailed objections to the same. These objections were placed before the Disciplinary Authority together with the Inquiry Report. Therefore, the appellant can not possibly claim that there has been a breach of rule of natural justice.49. Similarly, the Appellate Authority has also given cogent reasons in support of its conclusion. This is also apparent from the extract of the order of the Appellate Authority reproduced above. | 0 | 10,691 | 257 | ### 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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simultaneously to the criminal trial in the case of Divisional Controller, Karnataka State Road Transport Corporation Vs. M.G.Vittal Rao (supra). In this case, making reference to almost all the previous precedents, this Court has reiterated the legal position as follows:- (a) There is no legal bar for both proceedings to go on simultaneously. (b) The only valid ground for claiming that the disciplinary proceedings may be stayed would be to ensure that the defence of the employee in the criminal case may not be prejudiced. But even such grounds would be available only in cases involving complex questions of facts and law. (c) Such defence ought not to be permitted to unnecessarily delay the departmental proceedings. The interest of the delinquent officer as well as the employer clearly lies in a prompt conclusion of the disciplinary proceedings. (d) Departmental proceedings can go on simultaneously to the criminal trial, except where both the proceedings are based on the same set of facts and the evidence in both the proceedings is common. In our opinion, the principles culled out by this Court would be a complete answer to all the submissions made by Mr. Jain. 45. In view of the aforesaid legal principles enunciated and reiterated by this Court, we cannot accept that because the appellant had been prosecuted, the departmental proceedings could not have been continued simultaneously. As pointed out by Mr. Dwivedi, the charges against the appellant in the criminal trial related to the commission of criminal offences under Sections 120(B), 420, 467, 468, 471 and 201 of Indian Penal Code. The proof of criminal charges was depended upon prosecution producing proof beyond reasonable doubt relating to the culpability of the appellant alongwith other persons. In the departmental proceedings, the basic charge was that appellant whilst posted as a Branch Manager of Washi Turbhe Branch, failed to discharge his duties with utmost integrity, honesty, devotion and diligence to ensure and protect the interest of the Bank and acted in a manner unbecoming of a Bank Officer. The aforesaid charge clearly related to the manner in which the appellant performed the duties as the Manager of the Branch of the Bank. It had nothing to do with any criminal liability attaching to such conduct. It must be emphasised that Bank officials act as trustees of funds deposited by the public with the Bank. They have an obligation to earn the trust and confidence of not only the account holders but also the general public. The standard of integrity required of the Bank officials, particularly the cashiers, accountants, auditors and the Management at all levels, is like the Caesar’s wife, they must be above suspicion. Mr.Bhosale failed to maintain such high standards of integrity. He therefore, acted in violation of Rule 50(4) of the 1992 Rules. We, therefore, do not find any merit in the aforesaid submissions of Mr. Jain. 46. Mr. Dwivedi, in our opinion, has rightly pointed out that the conduct of the criminal trial was in the hands of the prosecuting agency. Having registered the First Information Report, the Bank had little or no role to play, apart from rendering assistance to the prosecuting agencies. In our opinion, the failure of the prosecution in producing the necessary evidence before the trial court can not have any adverse impact on the evidentiary value of the material produced by the Bank before the Inquiry Officer in the departmental proceedings. Before the Inquiry Officer, the Bank had placed on the record all the relevant documents which clearly establish that the appellant had exceeded his discretionary powers in purchasing the cheques and issuing demand drafts to show undue favour to the three construction companies named in the charge sheet. In view of the above, the findings recorded by the Inquiry Officer can not be said to be based on no evidence. It is a settled proposition of law that the findings of Inquiry Officer cannot be nullified so long as there is some relevant evidence in support of the conclusions recorded by the Inquiry Officer. In the present case, all the relevant documents were produced in the Inquiry to establish the charges levelled against the appellant. It is a matter of record that the appellant did not doubt the authenticity of the documents produced by the Bank. He merely stated that the signature on the documents were not his. The aforesaid statement of the appellant was nullified by Mr. S.M. Mahadik, who appeared as a witness for the Bank. He clearly stated that he recognized the signature of the appellant as he had been working as his subordinate. 47. The findings recorded by the Enquiry Officer cannot be said to be based on no evidence. In such circumstances, the appellant cannot take any advantage of the findings of innocence recorded by the criminal court. The ‘clean chit’ given by the learned Magistrate was influenced by the failure of the prosecution to lead the necessary evidence. No advantage of the same can be taken by the appellant in the departmental proceedings.48. We also do not find any merit in the submissions made by Mr. Jain that the order by the Disciplinary Authority is vitiated by non- application of mind. The extracts reproduced above would clearly indicate that the Disciplinary Authority was alive to all the submissions made by the appellant. The Disciplinary Authority had taken into consideration all the relevant material and only then concluded that the charges have been duly proved against the appellant. Furthermore, it is a matter of record that the appellant was duly supplied a copy of the Inquiry Report and he had submitted detailed objections to the same. These objections were placed before the Disciplinary Authority together with the Inquiry Report. Therefore, the appellant can not possibly claim that there has been a breach of rule of natural justice.49. Similarly, the Appellate Authority has also given cogent reasons in support of its conclusion. This is also apparent from the extract of the order of the Appellate Authority reproduced above.
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0
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47. The findings recorded by the Enquiry Officer cannot be said to be based on no evidence. In such circumstances, the appellant cannot take any advantage of the findings of innocence recorded by the criminal court. The ‘cleangiven by the learned Magistrate was influenced by the failure of the prosecution to lead the necessary evidence. No advantage of the same can be taken by the appellant in the departmental proceedings.48. We also do not find any merit in the submissions made by Mr. Jain that the order by the Disciplinary Authority is vitiated by non- application of mind. The extracts reproduced above would clearly indicate that the Disciplinary Authority was alive to all the submissions made by the appellant. The Disciplinary Authority had taken into consideration all the relevant material and only then concluded that the charges have been duly proved against the appellant. Furthermore, it is a matter of record that the appellant was duly supplied a copy of the Inquiry Report and he had submitted detailed objections to the same. These objections were placed before the Disciplinary Authority together with the Inquiry Report. Therefore, the appellant can not possibly claim that there has been a breach of rule of natural justice.49. Similarly, the Appellate Authority has also given cogent reasons in support of its conclusion. This is also apparent from the extract of the order of the Appellate Authority reproduced above.
|
M/S PRUDENTIAL SUGAR CORPORATION LTD Vs. CHADALAVADA KRISHNA MURTHY | known to him for a mutually agreed consideration of Rs. 19.51 crores. Respondent No. 2 herein and one IFCI Ltd., a public financial institution, executed a Deed of Assignment and Agreement for Acquisition, under which IFCI Ltd. assigned financial assets of M/s. Prudential held by IFCI Ltd. to respondent No.2-company. Subsequently, as respondent No.1 failed to make full payment under 1st MoU on time, respondent No.1 and appellant No.2 entered into another MoU under which respondent No.1 agreed to purchase 35 per cent of the equity shares of M/s. Prudential held by appellant No.2 and the persons and entities known to him for a mutually agreed consideration. The matter was taken up before the Arbitrator and issues were framed. 5. Appellant No.1-M/s. Prudential issued a notice of postal ballot seeking shareholders approval under Section 180(1)(a) read with section 110 of the Companies Act, 2013, to dispose of the sugar business of M/s. Prudential on slump sale basis as a going concern to a prospective buyer or to a separate entity or to Special Purpose Vehicle to be created for the purpose or a subsidiary company for a consideration and on such terms and conditions as the Board may deem fit. A suit, being O.S. No. 821 of 2014, was filed in the name of respondent No. 1 and respondent No. 2 against M/s. Prudential, appellant No. 2 and respondent No. 3 herein, seeking, inter alia, a declaration that the notice of postal ballot dated 26.08.2014 is null and void and also sought an injunction against the appellants herein from conducting the postal ballot and any other consequential and incidental acts in respect of the sugar business of M/s. Prudential. In the said suit, respondent No.1 also filed an application being I.A. No. 2074 of 2014 seeking an interim injunction against the appellants herein from conducting the postal ballot and any other consequential and incidental acts in respect of the sugar business of the M/s. Prudential pending disposal of the suit. The said application was dismissed vide order dated 31.03.2015. 6. During the pendency of the said application, the respondents herein also filed I.A. No. 2367 of 2014 seeking amendment to the main prayer in the Suit by including an additional prayer to declare that the 2nd petitioner/plaintiff is having absolute rights, title, interest, benefits, etc., in respect of the moveable and immovable assets of the 2nd defendant company by virtue of Deed of Assignment and Agreement of Acquisition, which application was allowed and his additional prayer was added. Aggrieved, the respondent approached the High Court challenging the order dated 31.03.2015 passed in I.A. No. 2074 of 2014. The High Court vide its impugned judgment and final order dated 13.04.2016 disposed of the appeal by modifying the order dated 31.03.2015 passed by the Trial Court by directing the appellants herein to maintain status quo existing as on 31.03.2015 in respect of the business, assets, liabilities, encumbrances, etc., of the 2nd respondent - company and granted 60 days to the appellants herein to bring back the situation as it was existing as on 31.03.2015. 7. What transpires from the above is that whereas the Trial Court has rejected the prayer for injunction that was made by the respondents, the High Court has not only granted the injunction in the form of status quo order, it has gone further by directing the appellant-M/s. Prudential to maintain status quo ante as existed on 31.03.2015 in respect of business, assets, liabilities, encumbrances, etc. It would be pertinent to note at this stage that before taking the decision to hive off the sugar business of M/s. Prudential, method of postal ballot was resorted to and in the postal ballot, majority shareholders agreed to transfer the business. Thereafter, agreement was entered into with M/s. Natems Sugar Ltd. (appellant in the second appeal, i.e., Civil Appeal No. 4318 of 2017) (hereinafter referred to as M/s. Natems). As per the said agreement, M/s. Natems was to take over the sugar business of M/s. Prudential for Rs. 120 crores. Substantial amount has already been paid by M/s. Natems to M/s. Prudential. The business has also been handed over to M/s. Natems which is not only carrying on the business but has also invested further sum of money in the said business. No doubt, it has yet to pay the balance consideration in the neighbourhood of Rs. 60 crores, Mr. C.A. Sundaram, learned senior counsel appearing for M/s. Natems, stated at the Bar that M/s. Natems is ready to deposit this balance amount forthwith. We find that after the postal ballot, many crucial steps were taken by M/s. Prudential for transfer of sugar business to M/s. Natems, some of which are reflected above. All this had happened before the passing of the impugned order by the High Court. There is one more aspect which also needs to be mentioned at this stage that the plaintiffs (respondents herein) in their plaint have stated that plaintiff No.1 invested the principal amount of Rs. 21.34 crores with the appellants herein and plaintiff No.2 had made a payment of Rs. 2,45,40,000/- to IFCI Ltd. in discharge of the debt of M/s. Prudential towards IFCI. We also find that there are some arbitration proceedings going on between Vinod Baid (appellant No.2 herein), one of the Directors and shareholder of M/s. Prudential, and the plaintiffs (respondents herein). Though these proceedings are initiated by Mr. Baid, the plaintiffs have also filed their counter claims therein. What we find at the end of the day is that the plaintiffs have primarily monetary interest only. Influenced by these considerations, we are of the opinion that instead of granting status quo, that too, w.e.f. 31.03.2015, which has the effect of even undoing major steps that have been taken in the process of transferring of the sugar business by M/s. Prudential to M/s. Natems, more appropriate course of action would be to allow the resolution passed by M/s. Prudential to take effect subject to clearing the monetary interest of the respondents herein. | 1[ds]7. What transpires from the above is that whereas the Trial Court has rejected the prayer for injunction that was made by the respondents, the High Court has not only granted the injunction in the form of status quo order, it has gone further by directing the appellant-M/s. Prudential to maintain status quo ante as existed on 31.03.2015 in respect of business, assets, liabilities, encumbrances, etc. It would be pertinent to note at this stage that before taking the decision to hive off the sugar business of M/s. Prudential, method of postal ballot was resorted to and in the postal ballot, majority shareholders agreed to transfer the business. Thereafter, agreement was entered into with M/s. Natems Sugar Ltd. (appellant in the second appeal, i.e., Civil Appeal No. 4318 of 2017) (hereinafter referred to as M/s. Natems). As per the said agreement, M/s. Natems was to take over the sugar business of M/s. Prudential for Rs. 120 crores. Substantial amount has already been paid by M/s. Natems to M/s. Prudential. The business has also been handed over to M/s. Natems which is not only carrying on the business but has also invested further sum of money in the said business. No doubt, it has yet to pay the balance consideration in the neighbourhood of Rs. 60 crores, Mr. C.A. Sundaram, learned senior counsel appearing for M/s. Natems, stated at the Bar that M/s. Natems is ready to deposit this balance amount forthwith. We find that after the postal ballot, many crucial steps were taken by M/s. Prudential for transfer of sugar business to M/s. Natems, some of which are reflected above. All this had happened before the passing of the impugned order by the High Court. There is one more aspect which also needs to be mentioned at this stage that the plaintiffs (respondents herein) in their plaint have stated that plaintiff No.1 invested the principal amount of Rs. 21.34 crores with the appellants herein and plaintiff No.2 had made a payment of Rs. 2,45,40,000/- to IFCI Ltd. in discharge of the debt of M/s. Prudential towards IFCI. We also find that there are some arbitration proceedings going on between Vinod Baid (appellant No.2 herein), one of the Directors and shareholder of M/s. Prudential, and the plaintiffs (respondents herein). Though these proceedings are initiated by Mr. Baid, the plaintiffs have also filed their counter claims therein. What we find at the end of the day is that the plaintiffs have primarily monetary interest only. Influenced by these considerations, we are of the opinion that instead of granting status quo, that too, w.e.f. 31.03.2015, which has the effect of even undoing major steps that have been taken in the process of transferring of the sugar business by M/s. Prudential to M/s. Natems, more appropriate course of action would be to allow the resolution passed by M/s. Prudential to take effect subject to clearing the monetary interest of the respondents herein. | 1 | 1,367 | 568 | ### Instruction:
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known to him for a mutually agreed consideration of Rs. 19.51 crores. Respondent No. 2 herein and one IFCI Ltd., a public financial institution, executed a Deed of Assignment and Agreement for Acquisition, under which IFCI Ltd. assigned financial assets of M/s. Prudential held by IFCI Ltd. to respondent No.2-company. Subsequently, as respondent No.1 failed to make full payment under 1st MoU on time, respondent No.1 and appellant No.2 entered into another MoU under which respondent No.1 agreed to purchase 35 per cent of the equity shares of M/s. Prudential held by appellant No.2 and the persons and entities known to him for a mutually agreed consideration. The matter was taken up before the Arbitrator and issues were framed. 5. Appellant No.1-M/s. Prudential issued a notice of postal ballot seeking shareholders approval under Section 180(1)(a) read with section 110 of the Companies Act, 2013, to dispose of the sugar business of M/s. Prudential on slump sale basis as a going concern to a prospective buyer or to a separate entity or to Special Purpose Vehicle to be created for the purpose or a subsidiary company for a consideration and on such terms and conditions as the Board may deem fit. A suit, being O.S. No. 821 of 2014, was filed in the name of respondent No. 1 and respondent No. 2 against M/s. Prudential, appellant No. 2 and respondent No. 3 herein, seeking, inter alia, a declaration that the notice of postal ballot dated 26.08.2014 is null and void and also sought an injunction against the appellants herein from conducting the postal ballot and any other consequential and incidental acts in respect of the sugar business of M/s. Prudential. In the said suit, respondent No.1 also filed an application being I.A. No. 2074 of 2014 seeking an interim injunction against the appellants herein from conducting the postal ballot and any other consequential and incidental acts in respect of the sugar business of the M/s. Prudential pending disposal of the suit. The said application was dismissed vide order dated 31.03.2015. 6. During the pendency of the said application, the respondents herein also filed I.A. No. 2367 of 2014 seeking amendment to the main prayer in the Suit by including an additional prayer to declare that the 2nd petitioner/plaintiff is having absolute rights, title, interest, benefits, etc., in respect of the moveable and immovable assets of the 2nd defendant company by virtue of Deed of Assignment and Agreement of Acquisition, which application was allowed and his additional prayer was added. Aggrieved, the respondent approached the High Court challenging the order dated 31.03.2015 passed in I.A. No. 2074 of 2014. The High Court vide its impugned judgment and final order dated 13.04.2016 disposed of the appeal by modifying the order dated 31.03.2015 passed by the Trial Court by directing the appellants herein to maintain status quo existing as on 31.03.2015 in respect of the business, assets, liabilities, encumbrances, etc., of the 2nd respondent - company and granted 60 days to the appellants herein to bring back the situation as it was existing as on 31.03.2015. 7. What transpires from the above is that whereas the Trial Court has rejected the prayer for injunction that was made by the respondents, the High Court has not only granted the injunction in the form of status quo order, it has gone further by directing the appellant-M/s. Prudential to maintain status quo ante as existed on 31.03.2015 in respect of business, assets, liabilities, encumbrances, etc. It would be pertinent to note at this stage that before taking the decision to hive off the sugar business of M/s. Prudential, method of postal ballot was resorted to and in the postal ballot, majority shareholders agreed to transfer the business. Thereafter, agreement was entered into with M/s. Natems Sugar Ltd. (appellant in the second appeal, i.e., Civil Appeal No. 4318 of 2017) (hereinafter referred to as M/s. Natems). As per the said agreement, M/s. Natems was to take over the sugar business of M/s. Prudential for Rs. 120 crores. Substantial amount has already been paid by M/s. Natems to M/s. Prudential. The business has also been handed over to M/s. Natems which is not only carrying on the business but has also invested further sum of money in the said business. No doubt, it has yet to pay the balance consideration in the neighbourhood of Rs. 60 crores, Mr. C.A. Sundaram, learned senior counsel appearing for M/s. Natems, stated at the Bar that M/s. Natems is ready to deposit this balance amount forthwith. We find that after the postal ballot, many crucial steps were taken by M/s. Prudential for transfer of sugar business to M/s. Natems, some of which are reflected above. All this had happened before the passing of the impugned order by the High Court. There is one more aspect which also needs to be mentioned at this stage that the plaintiffs (respondents herein) in their plaint have stated that plaintiff No.1 invested the principal amount of Rs. 21.34 crores with the appellants herein and plaintiff No.2 had made a payment of Rs. 2,45,40,000/- to IFCI Ltd. in discharge of the debt of M/s. Prudential towards IFCI. We also find that there are some arbitration proceedings going on between Vinod Baid (appellant No.2 herein), one of the Directors and shareholder of M/s. Prudential, and the plaintiffs (respondents herein). Though these proceedings are initiated by Mr. Baid, the plaintiffs have also filed their counter claims therein. What we find at the end of the day is that the plaintiffs have primarily monetary interest only. Influenced by these considerations, we are of the opinion that instead of granting status quo, that too, w.e.f. 31.03.2015, which has the effect of even undoing major steps that have been taken in the process of transferring of the sugar business by M/s. Prudential to M/s. Natems, more appropriate course of action would be to allow the resolution passed by M/s. Prudential to take effect subject to clearing the monetary interest of the respondents herein.
### Response:
1
### Explanation:
7. What transpires from the above is that whereas the Trial Court has rejected the prayer for injunction that was made by the respondents, the High Court has not only granted the injunction in the form of status quo order, it has gone further by directing the appellant-M/s. Prudential to maintain status quo ante as existed on 31.03.2015 in respect of business, assets, liabilities, encumbrances, etc. It would be pertinent to note at this stage that before taking the decision to hive off the sugar business of M/s. Prudential, method of postal ballot was resorted to and in the postal ballot, majority shareholders agreed to transfer the business. Thereafter, agreement was entered into with M/s. Natems Sugar Ltd. (appellant in the second appeal, i.e., Civil Appeal No. 4318 of 2017) (hereinafter referred to as M/s. Natems). As per the said agreement, M/s. Natems was to take over the sugar business of M/s. Prudential for Rs. 120 crores. Substantial amount has already been paid by M/s. Natems to M/s. Prudential. The business has also been handed over to M/s. Natems which is not only carrying on the business but has also invested further sum of money in the said business. No doubt, it has yet to pay the balance consideration in the neighbourhood of Rs. 60 crores, Mr. C.A. Sundaram, learned senior counsel appearing for M/s. Natems, stated at the Bar that M/s. Natems is ready to deposit this balance amount forthwith. We find that after the postal ballot, many crucial steps were taken by M/s. Prudential for transfer of sugar business to M/s. Natems, some of which are reflected above. All this had happened before the passing of the impugned order by the High Court. There is one more aspect which also needs to be mentioned at this stage that the plaintiffs (respondents herein) in their plaint have stated that plaintiff No.1 invested the principal amount of Rs. 21.34 crores with the appellants herein and plaintiff No.2 had made a payment of Rs. 2,45,40,000/- to IFCI Ltd. in discharge of the debt of M/s. Prudential towards IFCI. We also find that there are some arbitration proceedings going on between Vinod Baid (appellant No.2 herein), one of the Directors and shareholder of M/s. Prudential, and the plaintiffs (respondents herein). Though these proceedings are initiated by Mr. Baid, the plaintiffs have also filed their counter claims therein. What we find at the end of the day is that the plaintiffs have primarily monetary interest only. Influenced by these considerations, we are of the opinion that instead of granting status quo, that too, w.e.f. 31.03.2015, which has the effect of even undoing major steps that have been taken in the process of transferring of the sugar business by M/s. Prudential to M/s. Natems, more appropriate course of action would be to allow the resolution passed by M/s. Prudential to take effect subject to clearing the monetary interest of the respondents herein.
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Hindustan Lever Limited Vs. Their Workmen | to be a permanent employee and also demanded the Drivers scale of Rs. 90-5-165 plus dearness allowance. The appellant did not concede his demand. The State Government referred the dispute for adjudication to Labour Court, Meerut, Labour Court has given an award in favour of Kailash Kumar on August 9, 1968. The award directs the appellant to make Kaliash Kumar a permanent employee and to give him the scale of Rs. 90-5-165 and dearness allowance admissible to a permanent employee of the category of drivers with effect from May 6, 1967. This award is questioned by the appellant before us. 2. Counsel for the appellant had made two submissions. The first submission is that the dispute of Kailash Kumar not having been espoused by the appropriate union of the workmen or a number of workmen of the appellant was not an industrial dispute. The other submission is that the award is wrong on merits. 3. The first submission may shortly be disposed of. It appears that the case of Kailash Kumar was espoused by Hind Mazdoor Sabha, U. P. Branch. The case of the appellant before Labour Court was that the Hind Mazdoor Sabha, U. P. Branch was not competent to espouse the dispute because it has no community of interest with the workmen of the appellant.(See paragraph 3 of the appellants written statement). The workmen have controverted this plea. According to them, Hind Mazdoor Sabha, U. P. Branch, was competent to espouse the dispute. The Hindustan Mazdoor Sabha, a trade union of workmen of the appellant at Ghaziabad, is affiliated to the Hind Mazdoor Sabha. Labour Court framed a specific issue on this question. It is issue No. 2: "Whether the dispute is an industrial dispute for reasons given in paragraph 3 of the written statement of the employer?" The finding on issue No. 2 is this: "No evidence was produced by the employer on this issue, nor was it pressed by the learned representative of the employer at the time of argument. This issue, therefore, is decided against the employer" In the face of this finding, it is hardly open to counsel for the appellant to make the first submission before us. The submission is rejected. 4. Coming to merits, the appellant has been manufacturing various products. In 1958 the appellant decided to start agro-industrial operations for the purpose of manufacturing dehydrated vegetables and soups, dehydrated peas being the main commodity. With that object, they started in 1959 an experimental pilot plant for dehydrated vegetables at Ghaziabad. Kailash Kumar was employed in this experimental pilot plant in 1962. He was employed as a temporary hand. In 1965 the appellant decided to place the pilot plant on a permanent basis. Accordingly the area supervisors and block supervisors were made permanent. No decision could be taken in regard to Kailash Kumar. It is not disputed by the appellant that the job in which Kailash Kumar is employed will continue in future for an indefinite period. The abolition of the job is not in contemplation. Conceivably, the job would continue in future for an indefinite period because the plant is now set on a permanent footing. On these facts we agree with Labour Court that the job in which Kailash Kumar is employed is a permanent job. Accordingly, the incumbent of the job should also be permanent. 5. The question now is whether Labour Courts order directing the appellant to make Kailash Kumar permanent on the job is correct. Who should be made permanent is normally the function of the employer. But the appellant has produced no evidence to show that any other temporary employee has a better claim to be confirmed on the post than Kailash Kumar. The appellant has not also shown that the work of Kailash Kumar was not satisfactory or that there were any adverse remarks against him. 6. In its written statement the appellant has pleaded that certain drivers permanently employed in the factory had become surplus. The appellant did not discharge them and they were to be absorbed in permanent vacancies. So Kailash Kumar could not be made permanent. But the appellant has produced no evidence to show as to how many surplus hands there were and who were those surplus hands. The pilot plant was set on a permanent footing in 1959 and the post held by Kailash Kumar became a permanent job then. But no surplus hand has so far been absorbed in the post. Labour Court has doubted that there were any surplus hands to be absorbed. This view of Labour Court could not be and has not been challenged before us. So Kailash Kumar is the only eligible hand for the post. Refusal to confirm him is an unfair labour practice. In our view Labour Court has rightly directed the appellant to confirm him on the post. 7. The next question is whether Kailash Kumar should be given the pay scale of Rs. 90-5-165 with proper dearness allowance. The finding of Labour Court is in favour of Kailash Kumar. Admittedly, the scale of pay of drivers in the factory is Rs. 90-5-165. Kailash Kumar drives a jeep and falls in the category of drivers. He is not only driving a jeep in the plant but he also occasionally drives the jeep of the Assistant Agricultural Manager. R. D. Rehan, Personnel Manager of the appellant, has admitted that for the last two years or so he has been driving the jeep of the Agricultural Manager. It will thus appear that the activities of Kailash Kumar are not confined only to the plant. He also works as a factory driver whenever called upon to do so. As he falls within the category of drivers, we agree with Labour Court that he is entitled to be placed in the grade of Rs. 90-5-165. He is also entitled to the dearness allowance payable to the permanent drivers of the appellant. 8. We find no force in the appeal and accordingly it is dismissed with costs. | 0[ds]3. The first submission may shortly be disposed of. It appears that the case of Kailash Kumar was espoused by Hind Mazdoor Sabha, U. P. Branch. The case of the appellant before Labour Court was that the Hind Mazdoor Sabha, U. P. Branch was not competent to espouse the dispute because it has no community of interest with the workmen of the appellant.(See paragraph 3 of the appellants written statement). The workmen have controverted this plea. According to them, Hind Mazdoor Sabha, U. P. Branch, was competent to espouse the dispute. The Hindustan Mazdoor Sabha, a trade union of workmen of the appellant at Ghaziabad, is affiliated to the Hind Mazdoor Sabha. Labour Court framed a specific issue on this question. It is issue No. 2: "Whether the dispute is an industrial dispute for reasons given in paragraph 3 of the written statement of the employer?" The finding on issue No. 2 is this:"No evidence was produced by the employer on this issue, nor was it pressed by the learned representative of the employer at the time of argument. This issue, therefore, is decided against the employer"In the face of this finding, it is hardly open to counsel for the appellant to make the first submission before us. The submission is rejected6. In its written statement the appellant has pleaded that certain drivers permanently employed in the factory had become surplus. The appellant did not discharge them and they were to be absorbed in permanent vacancies. So Kailash Kumar could not be made permanent. But the appellant has produced no evidence to show as to how many surplus hands there were and who were those surplus hands. The pilot plant was set on a permanent footing in 1959 and the post held by Kailash Kumar became a permanent job then. But no surplus hand has so far been absorbed in the post. Labour Court has doubted that there were any surplus hands to be absorbed. This view of Labour Court could not be and has not been challenged before us. So Kailash Kumar is the only eligible hand for the post. Refusal to confirm him is an unfair labour practice. In our view Labour Court has rightly directed the appellant to confirm him on the postThe finding of Labour Court is in favour of Kailash Kumar. Admittedly, the scale of pay of drivers in the factory is Rs.. Kailash Kumar drives a jeep and falls in the category of drivers. He is not only driving a jeep in the plant but he also occasionally drives the jeep of the Assistant Agricultural Manager. R. D. Rehan, Personnel Manager of the appellant, has admitted that for the last two years or so he has been driving the jeep of the Agricultural Manager. It will thus appear that the activities of Kailash Kumar are not confined only to the plant. He also works as a factory driver whenever called upon to do so. As he falls within the category of drivers, we agree with Labour Court that he is entitled to be placed in the grade of Rs.. He is also entitled to the dearness allowance payable to the permanent drivers of the appellant8. We find no force in the appeal and accordingly it is dismissed with costs. | 0 | 1,140 | 610 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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to be a permanent employee and also demanded the Drivers scale of Rs. 90-5-165 plus dearness allowance. The appellant did not concede his demand. The State Government referred the dispute for adjudication to Labour Court, Meerut, Labour Court has given an award in favour of Kailash Kumar on August 9, 1968. The award directs the appellant to make Kaliash Kumar a permanent employee and to give him the scale of Rs. 90-5-165 and dearness allowance admissible to a permanent employee of the category of drivers with effect from May 6, 1967. This award is questioned by the appellant before us. 2. Counsel for the appellant had made two submissions. The first submission is that the dispute of Kailash Kumar not having been espoused by the appropriate union of the workmen or a number of workmen of the appellant was not an industrial dispute. The other submission is that the award is wrong on merits. 3. The first submission may shortly be disposed of. It appears that the case of Kailash Kumar was espoused by Hind Mazdoor Sabha, U. P. Branch. The case of the appellant before Labour Court was that the Hind Mazdoor Sabha, U. P. Branch was not competent to espouse the dispute because it has no community of interest with the workmen of the appellant.(See paragraph 3 of the appellants written statement). The workmen have controverted this plea. According to them, Hind Mazdoor Sabha, U. P. Branch, was competent to espouse the dispute. The Hindustan Mazdoor Sabha, a trade union of workmen of the appellant at Ghaziabad, is affiliated to the Hind Mazdoor Sabha. Labour Court framed a specific issue on this question. It is issue No. 2: "Whether the dispute is an industrial dispute for reasons given in paragraph 3 of the written statement of the employer?" The finding on issue No. 2 is this: "No evidence was produced by the employer on this issue, nor was it pressed by the learned representative of the employer at the time of argument. This issue, therefore, is decided against the employer" In the face of this finding, it is hardly open to counsel for the appellant to make the first submission before us. The submission is rejected. 4. Coming to merits, the appellant has been manufacturing various products. In 1958 the appellant decided to start agro-industrial operations for the purpose of manufacturing dehydrated vegetables and soups, dehydrated peas being the main commodity. With that object, they started in 1959 an experimental pilot plant for dehydrated vegetables at Ghaziabad. Kailash Kumar was employed in this experimental pilot plant in 1962. He was employed as a temporary hand. In 1965 the appellant decided to place the pilot plant on a permanent basis. Accordingly the area supervisors and block supervisors were made permanent. No decision could be taken in regard to Kailash Kumar. It is not disputed by the appellant that the job in which Kailash Kumar is employed will continue in future for an indefinite period. The abolition of the job is not in contemplation. Conceivably, the job would continue in future for an indefinite period because the plant is now set on a permanent footing. On these facts we agree with Labour Court that the job in which Kailash Kumar is employed is a permanent job. Accordingly, the incumbent of the job should also be permanent. 5. The question now is whether Labour Courts order directing the appellant to make Kailash Kumar permanent on the job is correct. Who should be made permanent is normally the function of the employer. But the appellant has produced no evidence to show that any other temporary employee has a better claim to be confirmed on the post than Kailash Kumar. The appellant has not also shown that the work of Kailash Kumar was not satisfactory or that there were any adverse remarks against him. 6. In its written statement the appellant has pleaded that certain drivers permanently employed in the factory had become surplus. The appellant did not discharge them and they were to be absorbed in permanent vacancies. So Kailash Kumar could not be made permanent. But the appellant has produced no evidence to show as to how many surplus hands there were and who were those surplus hands. The pilot plant was set on a permanent footing in 1959 and the post held by Kailash Kumar became a permanent job then. But no surplus hand has so far been absorbed in the post. Labour Court has doubted that there were any surplus hands to be absorbed. This view of Labour Court could not be and has not been challenged before us. So Kailash Kumar is the only eligible hand for the post. Refusal to confirm him is an unfair labour practice. In our view Labour Court has rightly directed the appellant to confirm him on the post. 7. The next question is whether Kailash Kumar should be given the pay scale of Rs. 90-5-165 with proper dearness allowance. The finding of Labour Court is in favour of Kailash Kumar. Admittedly, the scale of pay of drivers in the factory is Rs. 90-5-165. Kailash Kumar drives a jeep and falls in the category of drivers. He is not only driving a jeep in the plant but he also occasionally drives the jeep of the Assistant Agricultural Manager. R. D. Rehan, Personnel Manager of the appellant, has admitted that for the last two years or so he has been driving the jeep of the Agricultural Manager. It will thus appear that the activities of Kailash Kumar are not confined only to the plant. He also works as a factory driver whenever called upon to do so. As he falls within the category of drivers, we agree with Labour Court that he is entitled to be placed in the grade of Rs. 90-5-165. He is also entitled to the dearness allowance payable to the permanent drivers of the appellant. 8. We find no force in the appeal and accordingly it is dismissed with costs.
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### Explanation:
3. The first submission may shortly be disposed of. It appears that the case of Kailash Kumar was espoused by Hind Mazdoor Sabha, U. P. Branch. The case of the appellant before Labour Court was that the Hind Mazdoor Sabha, U. P. Branch was not competent to espouse the dispute because it has no community of interest with the workmen of the appellant.(See paragraph 3 of the appellants written statement). The workmen have controverted this plea. According to them, Hind Mazdoor Sabha, U. P. Branch, was competent to espouse the dispute. The Hindustan Mazdoor Sabha, a trade union of workmen of the appellant at Ghaziabad, is affiliated to the Hind Mazdoor Sabha. Labour Court framed a specific issue on this question. It is issue No. 2: "Whether the dispute is an industrial dispute for reasons given in paragraph 3 of the written statement of the employer?" The finding on issue No. 2 is this:"No evidence was produced by the employer on this issue, nor was it pressed by the learned representative of the employer at the time of argument. This issue, therefore, is decided against the employer"In the face of this finding, it is hardly open to counsel for the appellant to make the first submission before us. The submission is rejected6. In its written statement the appellant has pleaded that certain drivers permanently employed in the factory had become surplus. The appellant did not discharge them and they were to be absorbed in permanent vacancies. So Kailash Kumar could not be made permanent. But the appellant has produced no evidence to show as to how many surplus hands there were and who were those surplus hands. The pilot plant was set on a permanent footing in 1959 and the post held by Kailash Kumar became a permanent job then. But no surplus hand has so far been absorbed in the post. Labour Court has doubted that there were any surplus hands to be absorbed. This view of Labour Court could not be and has not been challenged before us. So Kailash Kumar is the only eligible hand for the post. Refusal to confirm him is an unfair labour practice. In our view Labour Court has rightly directed the appellant to confirm him on the postThe finding of Labour Court is in favour of Kailash Kumar. Admittedly, the scale of pay of drivers in the factory is Rs.. Kailash Kumar drives a jeep and falls in the category of drivers. He is not only driving a jeep in the plant but he also occasionally drives the jeep of the Assistant Agricultural Manager. R. D. Rehan, Personnel Manager of the appellant, has admitted that for the last two years or so he has been driving the jeep of the Agricultural Manager. It will thus appear that the activities of Kailash Kumar are not confined only to the plant. He also works as a factory driver whenever called upon to do so. As he falls within the category of drivers, we agree with Labour Court that he is entitled to be placed in the grade of Rs.. He is also entitled to the dearness allowance payable to the permanent drivers of the appellant8. We find no force in the appeal and accordingly it is dismissed with costs.
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